Perez v. Colvin

Filing 24

ORDER re: 10 SOCIAL SECURITY ADMINISTRATIVE RECORD filed by Carolyn W. Colvin, by Magistrate Judge Michael E. Hegarty on 10/29/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02914-MEH
MARGARET E. PEREZ,
Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security,
Defendant.

ORDER
______________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
Plaintiff, Margaret E. Perez, appeals from the Social Security Administration (“SSA”)
Commissioner’s final decision denying her application for disability and disability insurance
benefits (“DIB”), filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433, and her
application for supplemental security income benefits (“SSI”), filed pursuant to Title XVI of the
Social Security Act, 42 U.S.C. §§ 1381-1383c. Jurisdiction is proper under 42 U.S.C. § 405(g).
Oral argument would not materially assist the Court in its determination of this appeal. After
consideration of the parties’ briefs and the administrative record, the Court REVERSES AND
REMANDS the Commissioner’s final order.
I. STATEMENT OF THE CASE
Plaintiff seeks judicial review of the Commissioner’s decision denying her applications for
DIB [Administrative Record (“AR”) 129-136] and for SSI [AR 123-128] filed in November 2006.

After the application was initially denied on April 26, 2007 [AR 78-80], an Administrative Law
Judge (“ALJ”) scheduled a hearing upon the Plaintiff’s request for January 26, 2009 [AR 97-101].
Plaintiff and a vocational expert testified at the hearing. [AR 42] The ALJ then secured additional
evidence from a mental health examination of the Plaintiff and from Plaintiff’s physician regarding
her physical abilities. The ALJ issued a written ruling on May 26, 2009 finding Plaintiff was not
disabled since October 6, 2005, because the Plaintiff did not have a severe impairment equaling
those listed in the applicable federal regulations; because she had the residual functional capacity
(“RFC”) to perform light work, she can lift and carry 20 pounds occasionally and 10 pounds
frequently, she can sit, stand and/or walk for 6 hours in an 8-hour day, and she can only occasionally
climb, balance, stoop, kneel, crouch and crawl; and because, considering Plaintiff’s age, education,
work experience and RFC, there are jobs existing in significant numbers in the national economy
that Plaintiff can perform. [AR 26-36] The SSA Appeals Council subsequently denied Plaintiff’s
administrative request for review of the ALJ’s determination, making the SSA Commissioner’s
denial final for the purpose of judicial review [AR 1-6]. See 20 C.F.R. § 416.1481. Plaintiff timely
filed her complaint with this Court seeking review of the Commissioner’s final decision.
II. BACKGROUND
Plaintiff was born on May 9, 1955; she was 51 years old when she filed her applications for
disability and supplemental security income benefits on November 29, 2006. [AR 123-136]
Plaintiff originally claimed her disability began on July 1, 2003 when she was 48 years old. [Id.]
However, Plaintiff had previously applied for disability benefits in 2004, and the Appeals Council
denied her application on October 5, 2005. [AR 43] Thus, for the present application, Plaintiff
2

changed the disability onset date to October 6, 2005 [id.] and reported that she was limited in her
ability to work by “diabetes/lower back/liver, nuero.” [AR 157] Plaintiff asserts she is “unable to
use hands and stand on feet, and [she has] back problems.” [Id.] At the time of her application,
Plaintiff’s last day of work was July 1, 2003, because she was “unable to stand on feet and back.”
[Id.] Plaintiff states that she takes no medication for her condition. [AR 194]
Plaintiff’s work history included self-employment (making and selling burritos) from 1997
to 1998 and from 2002 to 2003, and a school bus driver from 1999 to 2002. [AR 139-141] Her
earnings in 2000 were $13,238.38, in 2001 were $581.57, in 2002 were $4,618.00 and in 2003 were
$9,697.00. [AR 143]
Plaintiff provides copies of medical records starting in July 2001; however, like the ALJ, the
Court will review only those records for the relevant time period, October 6, 2005 - February 2009.
A medical record from October 12, 2005 reflects that Plaintiff was seen for an office visit at Kaiser
Permanente where Dr. Walters diagnosed Plaintiff with diabetes mellitus (“DM”) type 2,
uncontrolled; neuropathy, peripheral, diabetic; microalbuminuria; depressive disorder; and
hypertriglyceridemia. [AR 466-467] Notably, Dr. Walters notes that Plaintiff’s “legs and feet hurting
for a year,” but she “has not done any treatment” and is “awoken from sleep at night”; that Plaintiff
“does not eat any breakfast”; and that her “DM [is] uncontrolled: told [her] to stop drinking reg
cokes (6 per day), eat breakfast, take insulin before breakfast and dinner.” [AR 468] The doctor
concluded with “[Plaintiff] will stop by in two weeks with sugars.”
At Plaintiff’s next visit to Kaiser on March 1, 2006, Plaintiff saw a nurse practitioner for a
physical examination, who noted Plaintiff’s “DM 2 w/ diabetic neuropathy” and “medication
3

noncompliance, history of.” [AR 462] The NP also noted “importance of DM management &
compliance/effects on major body systems discussed ad nauseum” and “stressed importance of
taking blood sugars to bring to clinic.” [AR 465]
On August 2, 2006, Plaintiff next saw Dr. Kuettner at Kaiser for a possible urinary tract
infection. [AR 458] Dr. Kuettner listed Plaintiff’s “diabetes mellitus (“DM”) type 2, uncontrolled;
neuropathy, peripheral, diabetic; and medication noncompliance, history of” and noted Plaintiff
“checks her sugars about once a month; when she checked it last, she was in the 400s!; tells me she
is under lots of stress with her mom.” [AR 459] Dr. Kuettner concluded Plaintiff’s “dm2 - totally
out of control; does not check sugars; does not know what 70/30 insulin is” and ordered Plaintiff to
“check sugars bid-tid and get back to me in 2 weeks.” [Id.]
Plaintiff saw Dr. Howe at Kaiser on September 22, 2006 for pain in her feet. [AR 455-456]
The doctor changed her pain medication and noted “neuropathy, likely diabetic type.” [AR 457]
Plaintiff went to Kaiser again on November 13, 2006 and saw a nurse practitioner for “leg and
increasing back pain.” [AR 452-453] The NP changed Plaintiff’s medication and ordered a lumbar
spine x-ray. [AR 454]
Plaintiff next consulted with a chiropractor, Darrin Marchus, D.C., apparently upon a referral
from Kaiser, on November 28, 2006. [AR 235] Plaintiff reported to Dr. Marchus that, for two
weeks, she awakened from sleep with leg pain, that Kaiser prescribed Percocet and Vicodin, that she
had no prior episodes and that she had never had chiropractic treatment. [Id.] A record from the
following day reflects that Plaintiff felt better after the treatment but felt pain again the previous
night. [AR 234]
4

Plaintiff filed the present applications for DIB and supplemental security income benefits
on November 29, 2006. [AR 123-136] Plaintiff claims that she stopped work due to her diabetes,
lower back, liver and “neuro” (likely referring to diabetic neuropathy). [AR 157]
Plaintiff went back to Kaiser and saw Dr. Kuettner on December 5, 2006 complaining of leg
and lower back pain. [AR 449-452] Plaintiff reported that she had seen a chiropractor twice, “but
does not feel better after treatment.” [AR 450] Dr. Kuettner instructed Plaintiff to call physical
therapy for a consultation and call to schedule a CT scan of her back. [AR 451]
On December 13, 2006, Plaintiff completed a personal pain questionnaire, an activities report
and a fatigue questionnaire for Disability Determination Services. [AR 164-175] Plaintiff reported
that she suffered “noropathy [sic] of the feet” and “constant pain in [her] feet and lower back,” and
could not walk, stand or sit “for a long period of time.” [AR 164-166] For her activities, Plaintiff
reported that she had “no problem” with personal care, needed no reminders for care, prepared one
meal per week, completed one load of laundry per day, went grocery shopping, handled all of her
finances, and went to church four times per week. [AR 167-172] Plaintiff also reported that she
suffered pain and fatigue 24 hours per day every day. [AR 175]
On February 19, 2007, Plaintiff visited the Mental & Behavioral Health Department at Kaiser
and saw Dr. Arvinte for “anxiety and depression.” [AR 613-617] Plaintiff reported that she started
feeling depressed 3-4 months previously; “cries a lot, has anxiety attacks, lost weight, is not
hungry”; and “sleeps 1 hour at a time, walks around the house, feels restless and nervous at night.”
[AR 614] She also reported that her blood sugars were in the 300s, she had poor compliance with
medication, and she was traumatized when her brother tried to rape her at age 12. [AR 615] Dr.
5

Arvinte assessed Plaintiff with a GAF score of 651 [AR 616] and instructed the Plaintiff “therapy
1

In Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162 n.1 (10th Cir. 2012), the Tenth Circuit
describes the GAF as follows:
The GAF is a 100–point scale divided into ten numerical ranges, which permits clinicians to
assign a single ranged score to a person's psychological, social, and occupational functioning.
See American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 32, 34
(Text Revision 4th ed. 2000). GAF scores are situated along the following “hypothetical
continuum of mental health [and] illness”:
• 91–100: “Superior functioning in a wide range of activities, life's problems never seem to get
out of hand, is sought out by others because of his or her many positive qualities. No symptoms.”
• 81–90: “Absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in
all areas, interested and involved in a wide range of activities, socially effective, generally
satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument
with family members).”
• 71–80: “If symptoms are present, they are transient and expectable reactions to psychosocial
stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in
social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).”
• 61–70: “Some mild symptoms (e.g., depressed mood and mild insomnia), OR some difficulty
in social, occupational, or school functioning (e.g., occasional truancy, or theft within the
household), but generally functioning pretty well, has some meaningful interpersonal
relationships.”
• 51–60: “Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers).”
• 41–50: “Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent
shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no
friends, unable to keep a job).”
• 31–40: “Some impairment in reality testing or communication (e.g., speech is at times illogical,
obscure, or irrelevant) OR major impairment in several areas, such as work or school, family
relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and
is unable to work; child beats up younger children, is defiant at home, and is failing at school).”
• 21–30: “Behavior is considerably influenced by delusions or hallucinations OR serious
impairment in communication or judgment (e.g., sometimes incoherent, acts grossly
inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in
bed all day; no job, home, or friends).”
• 11–20: “Some danger of hurting self or others (e.g., suicide attempts without clear expectation
of death; frequently violent; manic excitement) OR occasionally fails to maintain minimal
personal hygiene (e.g., smears feces) OR gross impairment in communication (e.g., largely
incoherent or mute).”
• 1–10: “Persistent danger of severely hurting self or others (e.g., recurrent violence) OR
6

would be helpful for you” and to call back in 3 weeks. [AR 617]
Plaintiff was next referred to Martin Wong, Ph.D. for a consultative psychiatric evaluation
on March 20, 2007. [AR 618] Dr. Wong noted that Plaintiff “did not get around to mentioning
depression until much later in the interview.” [Id.] Plaintiff reported to Dr. Wong that she is
“depressed again partly because of her sicknesses, partly because of her difficulties with her mother
and partly because of generalized feelings about aging.” [AR 619] She also told him that she spent
most of her days attempting to do household chores and he noted Plaintiff is “more than adequate
in self-care.” [Id.] She also told him that she had no appetite, heard voices, and hallucinated by
seeing both unknown people next to her and bugs on her body. [AR 620] Based on these reports and
after a “mini mental examination,” Dr. Wong diagnosed Plaintiff with “depression, recurrent,
moderate with psychotic features” and “generalized anxiety disorder,” and assessed a GAF of 55.
[AR 620-621]
On April 25, 2007, a reviewing provider, M. Dilger, completed a Psychiatric Review
Technique form for the Plaintiff, found that Plaintiff’s depression only mildly limited her in
activities of daily living, maintaining social functioning, and concentration, persistence and pace,
noted that Plaintiff’s auditory, visual and tactile hallucinations were likely caused by the medication
she was taking, and concluded that Plaintiff’s depression appears to be due to situational issues and
pain. [AR 220-233]
The next day, April 26, 2007, the SSA sent to Plaintiff Notices of Disapproved Claim

persistent inability to maintain minimal personal hygiene OR serious suicidal act with clear
expectation of death.”
• 0: “Inadequate information.”
7

informing her that her claims for DIB and SSI were denied. [AR 78-83] On June 22, 2007, Plaintiff
completed an Appointment of Representative form, which identifies Clark Litten as her attorney [AR
77], and a Request for Hearing by Administrative Law Judge form [AR 84].
Plaintiff saw Dr. Walters at Kaiser again on August 6, 2007 for abdominal pain. [AR 641644] Dr. Walters noted that Plaintiff “does not take sugars” and “Dm uncontrolled ... [s]he has
neuropathy already. We need to take our sugars. We can control this if you are willing.” [AR 642]
On August 13, 2007, the Office of Disability Adjudication and Review (ODAR) sent
Plaintiff’s counsel, Mr. Litten a letter confirming receipt of the request for hearing, informing
Plaintiff of hearing procedures and explaining that a Notice of Hearing will be sent at least 20 days
before the hearing notifying him of the time and place. [AR 85-87]
Plaintiff next saw a nurse practitioner at Kaiswer on January 29, 2008 for hip pain. [AR 637639] The NP noted Plaintiff had “sciatica R>L since this weekend - thinks it’s from her bed doesn’t work or exercise.” [AR 638] He also noted Plaintiff was “morbidly obese ... she should do
the back routine bid - she need[s] some stretching and aerobic fitness program.” [AR 639] Plaintiff
returned to Kaiser on February 13, 2008 for a pain medication injection. [AR 635-636]
Plaintiff was then admitted to Good Samaritan Medical Clinic on February 18, 2008
complaining of worsening back and leg pain. [AR 651-665] She reported that “she has previously
had back and leg pain but has gone away spontaneously.” [AR 652] An MRI of Plaintiff’s lumbar
spine showed “moderate degenerative disk disease at L-5 - S-1 with bilateral facet osteoarthritis”
and she was admitted for pain management. Id. On February 20, 2008, Plaintiff underwent a
“tranforaminal epidural steroid injection” for the sciatica. [AR 629-634] Notably, a chart in this
8

record reveals that Plaintiff’s weight remained virtually the same between March 26, 2007 through
February 18, 2008 (between 224 and 228 pounds). [AR 632] Upon discharge, a physician noted that
Plaintiff was “post steroid injection ... without sig[nificant] relief. We have adjusted pain meds and
also insulin (very poorly controlled dm).” [AR 655] He also noted, “pain continues to be severe.
Query malingering, drug seeking as she will be comfortable appearing when she is not aware of
being viewed but when seen she will start to groan.” [Id.] Plaintiff was discharged home on February
28, 2008. [Id.]
Plaintiff returned to Kaiser and saw Dr. Pierce for pelvic pain on May 16, 2008. [AR 623626] Dr. Pierce noted “lower abd tenderness, difficult to localize due to morbid obesity.” [AR 626]
A record from May 20, 2008 reveals that nurse called Plaintiff, who stated that her “[symptoms]
have totally resolved since taking the medication Dr. Pierce prescribed.” [AR 794]
On June 26, 2008, Plaintiff reported for the first time to the Salud Family Health Center
(“Salud”) for a “medication examination for disability.” [AR 858-860] A physician’s assistant noted
that Plaintiff’s blood sugar was 409, that her “current [diabetes] regimen is not working well for
her,” and that Plaintiff reported “she has no money for her medications.” [AR 859] The PA noted
Plaintiff’s problems as “disability exam and paperwork; diabetes mellitus; depression, neuropathy;
back pain; and obesity.” [AR 859-860]
Plaintiff returned to Salud on July 10, 2008 for another “disability exam.” [AR 855-857] She
reported to Dr. Calabrese that “her back is her main disability,” that she “had a cortisone injection
in her lower back two months ago” with no relief, she “has never had any training in diabetes
management.” [AR 856] Dr. Calabrese listed Plaintiff’s problems as “chronic low back pain;
9

diabetes mellitus, uncontrolled; carpal tunnel syndrome; and depression” and noted that the
disability paperwork had been completed. [AR 857]
Plaintiff returned to Salud a week later, July 17, 2008 for a “re-check.” [AR 854-855] Dr.
Calabrese noted that Plaintiff had “not yet started the insulin or gotten a glucometer ... “is not yet
scheduled with the PHA ... has not yet signed for records release from Kaiser ... did not bring
medication list today.” [AR 854] A record from July 24, 2008 notes that Plaintiff’s insulin was
“received” and that Plaintiff picked it up on August 8, 2008. [AR 853]
On July 25, 2008, the ODAR sent Mr. Litten a notice that the “file is now ready for review”
and included forms for the Plaintiff to complete, including recent medical treatment, medications
and work history. [AR 88-92]
On August 28, 2008, Plaintiff went to the Salud Clinic saying she was “sick,” she had started
the insulin only six days previously at an incorrect dosage, and her blood sugar was 527. [AR 848851] Dr. Calabrese noted that Plaintiff “has demonstrated noncompliance,” warned Plaintiff “this
could potentially be a life and death situation,” and recommended that Plaintiff “immediately go to
the emergency room at Platte Valley.” [AR 848] The doctor later noted that “[n]ot quite two hours
after the patient left, [Dr. Calabrese] contacted Platte Valley and she had not yet presented to the
emergency room.” [Id.] However, at approximately 7:00 p.m.,Plaintiff presented at the ER of the
Platte Valley Medical Center for dizziness, fatigue and left leg pain. [AR 806-827] Her blood sugar
at admission was 527. [AR 807] After cardiopulmonary tests and insulin treatment, her blood sugar
reduced to 226 and she denied any pain, so she was discharged home approximately 5 hours later.
[AR 808]
10

Plaintiff went back to Salud on September 2, 2008 for a follow-up appointment. [AR 846847] She reported that she had gone to the ER, that she did not fill the prescription they gave her,
and that she had been checking her blood sugars but did not write them down because she was
“scared.” [AR 846] Plaintiff returned to meet with a patient advocate on September 4, 2008, who
noted that Plaintiff “is ready to make changes” including reading labels and eating less each day,
but also “stated that I am going to die anyway.” [AR 845] Plaintiff also met with Dr. Calabrese who
noted the instructions she gave Plaintiff for diabetes management. [AR 843]
Plaintiff did not show up for her next scheduled appointment on September 25, 2008. [AR
841] However, she appeared for an appointment with Dr. Calabrese on October 2, 2008 “very
excited” that her “sugars are better.” [AR 839] She also requested a refill prescription for Percocet,
which she stated she had gotten from Kaiser and was taking 6 pills each day. [Id.] The doctor noted
a concern for “chronic pain with opiate use” and stated she “did not feel comfortable writing
Percocet for her” and “[Plaintiff] will need to complete a narcotic contract at the next visit.” [Id.]
The doctor also explained the importance of exercise for Plaintiff’s health issues. [Id.]
On October 7, 2008, Plaintiff completed another Appointment of Representative form
identifying Teresa Abbott as her new attorney. [AR 93-95]
Plaintiff returned to Salud on October 14, 2008 with blood sugar at 469 and requesting
medication for depression. [AR 838] She told Dr. Calabrese that she was unable to fill the
prescription for pain medication due to finances and was out of, or almost out of, her other
medication. [AR 837] The doctor noted Plaintiff was “in tears,” and her neuropathy was “painful.”
[Id.] The record also notes that Plaintiff called on November 7, 2008 seeking another prescription
11

for the pain medication. [Id.]
A record from November 25, 2008 reflects that Plaintiff called requesting a change in her
pain medication to Vicodin. [AR 836] Dr. Calabrese noted that Plaintiff must be seen in person
before any change in medication. [Id.] Accordingly, the office set an appointment for Plaintiff on
December 2, 2008. [Id.] However, Plaintiff called again on December 1, 2008 requesting a refill for
Neurontin saying that the bottle was “hard to open and when bottle was opened pills fell in toilet.”
[AR 909]
Plaintiff presented on December 2, 2008 asking that her pain medication be changed back
to Percocet or to Vicodin because she was feeling “sick.” [AR 832-834] Concerning Plaintiff’s
diabetes, Dr. Calabrese noted that Plaintiff was “noncompliant with medication usage” and wrote
down specific instructions. [AR 832] The doctor also noted that she would prescribe a limited
amount of Percocet for Plaintiff, “because I believe it is so important that she follow up in 10 days.”
[Id.] A hand-written note on this record reflects that Plaintiff call on December 15, 2008 asking for
a refill of Percocet. [Id.]
Plaintiff returned on December 16, 2008 for her medication refill. [AR 830-831] Dr.
Calabrese noted, “I am quite concerned with her noncompliance with her insulin ... I have again
emphasized that this is dangerous for her.” [AR 830] The doctor also noted that Plaintiff still
complained of depression on the maximum dose of Paxil, so she added an additional medication and
instructed Plaintiff to follow up in two weeks. [Id.] Two days later, Plaintiff called saying that her
purse, containing all of her medications, was stolen from her car. [AR 829] Dr. Calabrese noted that
she would refill all prescriptions, except Percocet. [Id.] A record from December 30, 2008 reflects
12

that Plaintiff did not show for the follow-up appointment with Dr. Calabrese. [AR 903]
On December 23, 2008, ALJ Jon Lawritson sent Plaintiff a Notice of Hearing informing the
Plaintiff that the hearing would occur on January 26, 2009 in Denver, Colorado. [AR 97-118]
Deborah Kay Christianson of Christianson Vocational Services was requested to appear as a
vocational expert at the hearing. [AR 119] Plaintiff returned an Acknowledgment of Receipt (Notice
of Hearing) form on December 27, 2008. [AR 120]
A record from January 8, 2009 reflects that Salud had received the Plaintiff’s insulin that day
and that Plaintiff would pick it up on January 12, 2009. [AR 902] A subsequent record on January
16, 2009 reflects that Plaintiff called Salud reporting that her blood sugar was 328; the doctors in
attendance recommended that she go to the ER, but Plaintiff wanted to wait to be seen by Dr.
Calabrese on January 20. [AR 901] The record also reflects that Plaintiff still had not picked up her
insulin. [Id.]
On January 20, 2009, Plaintiff presented at Salud for an appointment with Dr. Calabrese.
[AR 899-900] She reported that she had gone to Platte Valley as instructed on January 16, 2009;
however, the doctor noted “no records available from Platte Valley.” [AR 899] Dr. Calabrese also
noted that Plaintiff’s blood sugars had improved some, but “she remains highly insulin resistant.”
[Id.] The doctor also noted that Plaintiff’s depression was “under reasonable control right now.” [Id.]
On January 26, 2009, Plaintiff and her counsel, Teresa Abbott, appeared for the hearing, and
the ALJ took testimony from the Plaintiff and from Ms. Christianson as a vocational expert. [See
AR 41] The hearing opened with the ALJ seeking clarification of the status of the case, but Ms.
Abbott was not aware of a previous unfavorable SSA decision in October 2005, so she stipulated
13

to an amended disability onset date of October 6, 2005. [AR 44-45]
Plaintiff testified that she completed the ninth grade in school; she had a burrito-making
business in 2003; she was employed for one day driving a limousine bus, but “wrecked” it; she
complied with medical instructions for her diabetes, but “sometimes [she] couldn’t afford [her]
insulin”; she had had back pain for 4-5 years and does not know why a medical record reflected that
her previous back pain “went away spontaneously”; her back pain would feel better when she took
her pills; the medication for her neuropathy (Gabapentin) makes her sleepy and suffer headaches and
upset stomach; neuropathy feels like burning and numbing in her legs and feet; she gets foot and leg
cramps that awaken her at night; she can walk three houses from her own house in 15 minutes; daily,
she has neuropathy in her hands; she can take a shower, but has back pain; she no longer goes
grocery shopping, does laundry or drives; she tries to wash dishes and makes her bed, but does not
sweep, mop or do yard work; she does not lift anything; she does not go to movies, but goes to
church and alternates between sitting, standing and laying down on the bench; she lays down six
times per day, watches television, and reads her Bible; she feels sad and is on medication for
depression; and she is better able to understand and follow instructions by Dr. Calabrese at Salud.
[AR 47-64]
Ms. Christianson testified that a hypothetical employee – same age, education and work
experience as the Plaintiff, who could occasionally lift and carry 20 pounds, frequently lift and carry
10 pounds, sit, stand and walk about six hours during an eight-hour workday, and occasionally
climb, balance, stoop, kneel, crouch and crawl – could perform Plaintiff’s past work as a burrito
maker, as well as the positions of cashier, small products assembler, and a ticket seller. [AR 66-69]
14

When asked if the expert was aware of the December 2008 economic news release showing a
decrease in the number of national jobs, Ms. Christianson testified, “Certainly, those numbers are
always in flux ... and I think these numbers are a good approximation of jobs that exist.” [AR 68-69]
At the conclusion of the testimony, the ALJ mentioned that he might arrange for the Plaintiff
to see a mental health professional for evaluation of her depression. [AR 70]
On January 30, 2009, the ALJ addressed a letter to Dr. Calabrese requesting that she
complete an “Ability to do Work-Related Activities (Physical)” form for the Plaintiff. [AR 876-885]
In addition, Brett Vallette, PhD was asked to evaluate Plaintiff and complete an “Ability to do
Work-Related Activities (Mental)” form. [AR 865-869]
Plaintiff went to the Salud Clinic on February 3, 2009 for a follow-up on her blood sugars
[AR 897-898] Dr. Calabrese noted that Plaintiff was doing much better following instructions with
her insulin and recording her blood sugars, but reminded Plaintiff that her diabetes could be well
controlled with medication, diet and exercise. [AR 897]
On February 17, 2009, Dr. Vallette saw Plaintiff for the requested psychological evaluation,
which included a clinical interview and mental status examination. [AR 870-875] Dr. Vallette noted
that Plaintiff “is significantly obese,” “looks tired and somewhat worn out,” and stated to him she
has “deteriorating disks,” back pain, and “[her] legs are no good.” [AR 870] She denied any physical
or sexual abuse growing up. [Id.] Plaintiff reported that, during the day, she did some chores around
the house, but could not do laundry, vacuuming or the grocery store; she watched television and read
her Bible; she was able to dress and bathe herself and went to church; she has friends with whom
she talked and went to church; and she had a driver’s license, but said she “rarely drove” because
15

of pain. [AR 871] She reported that she slept up to 20 hours per day, but it was all interrupted, and
she said she felt hopeless, worthless and worried. She denied any anxiety, panic, PTSD or psychotic
process. [AR 872] Dr. Vallette found Plaintiff to be truthful and fully cooperative. [Id.]
Dr. Vallette performed Wechsler Adult Intelligence Scale and Wechsler Memory Scale tests
on the Plaintiff, and determined that “[a]lthough the client has an extremely low IQ, she is not
mentally retarded”; rather, the doctor found Plaintiff had a learning disability, finished only the ninth
grade and was in special education. [AR 873] Plaintiff’s memory function, on the other hand, was
comparatively strong. [AR 874] Dr. Vallette diagnosed Plaintiff with dysthymia (mild, chronic
depression) with periods of major depression; learning disability; back pain; neuropathy; obesity;
diabetes; and a GAF score of 60-65. [Id.]
Plaintiff returned to Salud on February 24, 2009 for a follow-up on her blood sugars. [AR
895-896] Dr. Calabrese noted that the “majority of our time today was spent reviewing the requested
information from social security disability.” [AR 895] The doctor concluded that Plaintiff’s diabetes
“continues to be uncontrolled but is improved overall.” [Id.] A record from March 20, 2009 reflects
that Plaintiff called for a refill of Percocet; the doctor wrote a prescription “to last until appt 3-3109.” [AR 894]
Also on March 20, 2009, the ALJ provided Plaintiff’s counsel with copies of Dr. Vallette’s
report and the request for information from Dr. Calabrese informing counsel that she was permitted
to provide written comments concerning the new information, facts and law applicable to the case
in light of the information, written questions to be submitted to the doctors, and a supplemental
evidentiary hearing in light of the information. [AR 198-199] Counsel responded on March 23, 2009
16

stating that “we have no additional comments and we look forward to a decision in the case.” [AR
201] Subsequently, on April 16, 2009, the ALJ provided Plaintiff’s counsel with a copy of the
requested report completed by Dr. Calabrese. [AR 202-204; 886-892] Counsel responded on April
22, 2009 stating that “we have no additional comments and we look forward to a decision in the
case.” [AR 205] The ALJ issued an unfavorable decision on May 26, 2009.
III. LAW
Here, the Court will review the ALJ’s application of the five-step sequential evaluation
process used to determine whether an adult claimant is disabled under Title II and Title XVI of the
Social Security Act, which are generally defined as the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(B); see also Bowen v. Yuckert, 482 U.S. 137, 140
(1987).
Step One determines whether the claimant is presently engaged in substantial gainful
activity. If she is, disability benefits are denied. See 20 C.F.R. § 416.920. Step Two is a
determination of whether the claimant has a medically severe impairment or combination of
impairments as governed by 20 C.F.R. § 416.920(c). If the claimant is unable to show that her
impairment(s) would have more than a minimal effect on her ability to do basic work activities, she
is not eligible for disability benefits. Step Three determines whether the impairment is equivalent
to one of a number of listed impairments deemed to be so severe as to preclude substantial gainful
employment. See 20 C.F.R. § 416.920(d). If the impairment is not listed, she is not presumed to
17

be conclusively disabled. Step Four then requires the claimant to show that her impairment(s) and
assessed residual functional capacity (“RFC”) prevent her from performing work that she has
performed in the past. If the claimant is able to perform her previous work, the claimant is not
disabled. See 20 C.F.R. § 416.920(e) & (f). Finally, if the claimant establishes a prima facie case
of disability based on the four steps as discussed, the analysis proceeds to Step Five where the SSA
Commissioner has the burden to demonstrate that the claimant has the RFC to perform other work
in the national economy in view of her age, education and work experience. See 20 C.F.R. §
416.920(g).
IV. ALJ’s RULING
The ALJ ruled that Plaintiff had not engaged in substantial gainful activity since the onset
date of her disability, October 6, 2005 (Step One). [AR 26] Further, the ALJ determined that
Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine;
diabetes mellitus with neuropathy; obesity; and carpal tunnel syndrome (Step Two). [AR 27] But,
the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or
medically equaled a listed impairment deemed to be so severe as to preclude substantial gainful
employment (Step Three). [AR 28-30]
The ALJ then determined that Plaintiff had the RFC to perform “light work ... except she can
lift and carry up to 20 pounds occasionally and 10 pounds frequently; stand and walk about 6 hours
during an 8-hour day; and sit about 6 hours during an 8-hour day. The claimant can only
occasionally climb, balance, stoop, kneel, crouch, and crawl.” [AR 30] The ALJ determined that
the record reflects Plaintiff has performed daily activities such as preparing meals, household
18

cleaning, washing dishes, doing laundry, fixing her bed and attending church twice weekly, and
concluded “[s]uch activities of daily living, when considered with the rest of the evidence, including
the claimant’s inconsistent statements found in the record regarding her back and leg pain, and the
claimant’s general lack of non-compliance with medical treatment in light of physician’s [sic]
recommendations to combat her diabetes, are inconsistent with her alleged disabling symptoms and
suggest that she retains significant capacity despite her subjective complaints.” [AR 31]
After ruling that Plaintiff was unable to perform any past relevant work (Step Four), the ALJ
went on to determine that considering Plaintiff’s age, education, work experience and residual
functional capacity, Plaintiff could perform work existing in significant numbers in the national
economy (Step Five). [AR 35] As a result, the ALJ concluded that Plaintiff was not disabled at Step
Five of the sequential process and, therefore, was not under a disability as defined by the SSA. [AR
36]
Plaintiff sought review of the ALJ’s decision by the Appeals Council on June 11, 2009. [AR
19] On October 2, 2009, the Appeals Council notified Plaintiff that it had determined it had “no
reason” under the rules to review the decision and, thus, the ALJ’s decision “is the final decision of
the Commissioner of Social Security.” [AR 16-18] However, in or about October/November 2010,
Plaintiff’s counsel requested that the Council re-open the claim to consider new evidence; the
Council granted the request on November 3, 2010 and instructed the attorney, Ms. Abbott, to submit
evidence that is “new and material to the issues considered in the hearing decision dated May 26,
2009.” [AR 12-15] On November 22, 2010, another attorney, Steven Earl, submitted a brief arguing
that the ALJ “failed to consider the various [§ 404.1527(d)] factors ... in evaluating the opinion of
19

the treating physician,” and “failed to ... consider[ ] the impact of the claimant’s obesity on her
ability to work.” [AR 208-211] The Appeals Council, on January 27, 2012, once again “found no
reason” to review the ALJ’s decision. [AR 5-11]
On June 26, 2012, Plaintiff filed a third Appointment of Representative form identifying
Joseph Whitcomb as her attorney. [AR 4] The following day, Mr. Whitcomb requested from the
Appeals Council an extension of time within which to file a civil complaint since “[the final notice
was mailed to the wrong address and the claimant never received it.”2 [AR 3] More than a year later,
on September 28, 2013, the Appeals Council granted the request and ordered Plaintiff to file a civil
action within 30 days after receiving its letter. [AR 1-2] Plaintiff filed her Complaint in this matter
on October 25, 2013.
V. STANDARD OF REVIEW
This Court’s review is limited to whether the final decision is supported by substantial
evidence in the record as a whole and whether the correct legal standards were applied. See
Williamson v. Barnhart, 350 F.3d 1097, 1098 (10th Cir. 2003); see also White v. Barnhart, 287 F.3d
903, 905 (10th Cir. 2001). Thus, the function of the Court’s review is “to determine whether the
findings of fact ... are based upon substantial evidence and inferences reasonably drawn therefrom.
If they are so supported, they are conclusive upon the reviewing court and may not be disturbed.”
Trujillo v. Richardson, 429 F.2d 1149, 1150 (10th Cir. 1970). “Substantial evidence is more than
a scintilla, but less than a preponderance; it is such evidence that a reasonable mind might accept

2

The Court notes that the January 27, 2012 notice was sent to the same address as that
listed on the June 26, 2012 Appointment of Representative form.
20

to support the conclusion.” Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987) (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971)). The Court may not re-weigh the evidence nor
substitute its judgment for that of the ALJ. See Casias v. Secretary of Health & Human Servs., 933
F.2d 799, 800 (10th Cir. 1991) (citing Jozefowicz v. Heckler, 811 F.2d 1352, 1357 (10th Cir. 1987)).
However, reversal may be appropriate when the ALJ either applies an incorrect legal standard or
fails to demonstrate reliance on the correct legal standards. See Winfrey v. Chater, 92 F.3d 1017,
1019 (10th Cir. 1996).
VI. ISSUES ON APPEAL
On appeal, Plaintiff raises three issues: (1) whether the ALJ erred when he found that the
Plaintiff’s depression did not constitute a severe impairment; (2) whether the ALJ erred by failing
to consider and make findings of fact regarding whether Plaintiff had a listed impairment pursuant
to 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.05; and (3) whether the ALJ erred by failing to
assign restrictions in the RFC relating to Plaintiff’s carpal tunnel syndrome, obesity and mental
impairments.
VII. ANALYSIS
The Court will address each of Plaintiff’s issues in turn.
A.

Whether Depression is “Severe Impairment”
The ALJ in this case considered Plaintiff’s alleged depression not to be a “severe medical

impairment that has more than minimally impacted the claimant’s ability to work.” [AR 27] In so
concluding, the ALJ first noted minimal treatment reflected in the record He then compared an
evaluation performed by a treating source from Kaiser in February 2007 with a consultative exam
21

performed in March 2007 in response to Plaintiff’s application for benefits. [Id.; see also AR 613617 and AR 618-621] The ALJ noted that the treating physician diagnosed Plaintiff with a
depressive disorder and assigned a GAF score of 65, while the consultative examiner diagnosed
Plaintiff with moderate depression and generalized anxiety disorder and assigned a GAF score of
55. The ALJ accorded the consultative examiner’s opinion little weight as it was inconsistent with
the treating physician’s examination performed just a month earlier and with the record as a whole.
[AR 27]
Furthermore, he found that a review of the entire record revealed the Plaintiff’s depressive
symptoms seemed to wax and wane over time; in fact, a record in January 2009 revealed that her
symptoms had improved. [AR 28] The ALJ then discussed the findings of the consultative
examiner he requested following the hearing, saying that the examiner diagnosed a learning disorder
and dysthymia, found Plaintiff’s abilities to understand and carry out instructions were not affected,
found only mild limitations in Plaintiff’s abilities to interact and respond to change, and assessed
a GAF score of 60-65, which was consistent with the treating source opinion from 2007. Finally,
the ALJ noted that the state agency physician determined that Plaintiff’s alleged depression did not
constitute a severe impairment. The ALJ concluded that, after a “thorough review” of the evidence,
the Plaintiff “has only a mild restriction in activities of daily living, mild difficulties maintaining
social functioning, mild difficulties maintaining concentration, persistence and pace, and has not
experienced any extended periods of decompensation.”
The Social Security Act provides that an impairment is “severe” if it “significantly limits an
individual’s physical or mental abilities to do basic work activities.” Social Security Regulation 9622

9p. Accordingly, the Supreme Court has adopted what is referred to as a “de minimus” standard:
“[o]nly those claimants with slight abnormalities that do not significantly limit any ‘basic work
activity’ can be denied benefits without undertaking” the subsequent steps of the sequential
evaluation process. Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004) (citing Bowen v.
Yuckert, 482 U.S. 137, 158 (1987) (O'Connor, J., concurring)); see also 20 C.F.R. §§ 404.1520(c),
404.1521(a). “Basic work activities are ‘abilities and aptitudes necessary to do most jobs,’ 20 C.F.R.
§ 404.1521(b), including ‘walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or
handling; seeing, hearing, and speaking; understanding, carrying out, and remembering simple
instructions; use of judgment, responding appropriately to supervision, coworkers, and usual work
situations; and dealing with changes in a routine work setting.’” Id. (citing Social Security Ruling
85-28, 1985 WL 56856 at *3).
An ALJ is required by regulation to apply a “special technique” at Step 2 when confronted
with a claim of mental impairment, such as depression. Grotendorst v. Astrue, 370 F. App’x 879,
882 (10th Cir. 2010) (citing 20 C.F.R. § 404.1520a)).
The first step in that technique is to “evaluate the claimant’s pertinent symptoms,
signs, and laboratory findings to determine whether [the claimant has] a medically
determinable mental impairment(s).” Id. § 404.1520a(b)(1). “A physical or mental
impairment must be established by medical evidence consisting of signs, symptoms,
and laboratory findings, not only by a claimant’s statement of symptoms.” Id. §
404.1508. ...
Under § 404.1520a(b)(2), once medically determinable mental impairments are
found, the ALJ must “rate the degree of functional limitation resulting from the
impairment(s).” The ALJ does this by rating the claimant’s limitations in “four broad
functional areas,” which are: “Activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation.” Id. §
404.1520a(c)(3). These ratings are then used to determine the severity of the mental
23

impairment(s).
Under the regulations, the ALJ’s written decision must incorporate the pertinent
findings and conclusions based on the technique. The decision must show the
significant history, including examination and laboratory findings, and the functional
limitations that were considered in reaching a conclusion about the severity of the
mental impairment(s). The decision must include a specific finding as to the degree
of limitation in each of the four broad functional areas.... Id. § 404.1520a(e)(2).
Id. (internal brackets omitted).
Plaintiff argues that the ALJ erred at Step 2 by relying on a GAF score of 65 for his “nonsevere” finding, which Plaintiff contends is in the mid-range and denotes “some difficulty in
occupational functioning [which] is clearly more than minimal difficulty.” Plaintiff also notes that
her depression was a contributing cause of her periods of noncompliance with treatment for her
diabetes. Further, Plaintiff asserts that the ALJ erred by basing his non-severe finding on the fact
that Plaintiff had minimal treatment for depression.
Defendant counters that a specific GAF score may have absolutely nothing to do with a
claimant’s occupational functioning, but may relate more to social or school functioning. Moreover,
Defendant contends that the ALJ “discussed at length” the evidence demonstrating that Plaintiff’s
depression was not severe, such as minimal treatment and findings of mild limitations. Finally,
Defendant argues that any non-severe finding is harmless when the ALJ finds a severe impairment
and proceeds through the sequential evaluation.
The Court finds first that the ALJ did not err in considering Plaintiff’s GAF scores in
determining the severity of Plaintiff’s impairment. The ALJ stated, “In February 2007, the claimant
was diagnosed with a depressive disorder and assigned a [ ] (GAF) score of 65, suggestive of only

24

mild symptoms.” [AR 27] According to the Tenth Circuit, a GAF score of 61-70 indicates “[s]ome
mild symptoms (e.g., depressed mood and mild insomnia), OR some difficulty in social,
occupational, or school functioning (e.g., occasional truancy, or theft within the household), but
generally functioning pretty well, has some meaningful interpersonal relationships.” Thus, the ALJ
was correct about the “mild symptoms,” and the diagnosis itself reflects a mental status exam in
which the Plaintiff appeared “anxious” in mood and affect, but “good,” “fair” and “appropriate” in
the nine other areas. [AR 616] Consequently, the Court cannot say that the ALJ was incorrect in
concluding that the evaluation and GAF score reflected “mild symptoms.”
With respect to “minimal treatment,” the ALJ found, “[t]he record reveals minimal treatment
for the claimant’s complaints of depressive symptoms, other than medication prescribed by her
primary care physician. This treatment does not suggest the claimant’s symptoms are severely
debilitating.” [AR 27] However, the Tenth Circuit holds,
the regulations set out exactly how an ALJ is to determine severity, and
consideration of the amount of treatment received by a claimant does not play a role
in that determination. This is because the lack of treatment for an impairment does
not necessarily mean that the impairment does not exist or impose functional
limitations. Further, attempting to require treatment as a precondition for disability
would clearly undermine the use of consultative examinations.
Grotendorst, 370 F. App’x at 883 (emphasis in original). Accordingly, the ALJ erred in considering
the lack of treatment for Plaintiff’s depression in his severity determination. “Nevertheless, an error
at step two of the sequential evaluation concerning one impairment is usually harmless when the
ALJ, as occurred here, finds another impairment is severe and proceeds to the remaining steps of
the evaluation. This is because all medically determinable impairments, severe or not, must be taken

25

into account at those later steps.” Id. (citations omitted; emphasis in original). In this case, the ALJ
found four of Plaintiff’s impairments severe and proceeded to the next step of the evaluation;
accordingly, the Court cannot find that remand is proper for any errors made by the ALJ at Step 2.
B.

Whether Plaintiff Had Listed Impairment under § 12.05
In Step 3 of his evaluation, the ALJ in this case analyzed whether any of the Plaintiff’s

severe impairments – degenerative disc disease, diabetes mellitus, obesity and carpal tunnel
syndrome – met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1. [AR 28-30] He found that none of them did. The ALJ did not mention any mental
impairments in his evaluation. [Id.]
The Social Security Administration’s Listing of Impairments includes Section 12.00 titled,
“Mental Disorders.” In this case, Plaintiff challenges the ALJ’s omission of an evaluation as to
whether she met the requirements of Section 12.05 for intellectual disability. Section 12.05
provides:
12.05 Intellectual disability: Intellectual disability refers to significantly subaverage
general intellectual functioning with deficits in adaptive functioning initially manifested
during the developmental period; i.e., the evidence demonstrates or supports onset of
the impairment before age 22.
The required level of severity for this disorder is met when the requirements in A, B, C,
or D are satisfied.
A. Mental incapacity evidenced by dependence upon others for personal needs (e.g.,
toileting, eating, dressing, or bathing) and inability to follow directions, such that the
use of standardized measures of intellectual functioning is precluded;
OR
B. A valid verbal, performance, or full scale IQ of 59 or less;
26

OR
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other
mental impairment imposing an additional and significant work-related limitation of
function;
OR
D. A valid verbal, performance, or full scale IQ of 60 through 70, resulting in at least
two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
20 C.F.R. Pt. 404, subpt. P, app. 1. A claimant must meet the “preamble” or “capsule” definition
in addition to meeting one of the four severity prongs listed in subsections A-D. See Montano v.
Astrue, No. 11-cv-02303-WJM, 2012 WL 6701804, at *2 (D. Colo. Dec. 26, 2012); see also King
v. Astrue, No. 10-cv-01530-LTB, 2011 WL 3471015, at *4 (D. Colo. Aug. 8, 2011) (to meet listing
12.05, the plaintiff “had to show that his impairment met or equaled the capsule definition of mental
retardation; that he had a valid IQ score of 70 or below; and that he had another severe
impairment.”).
Plaintiff contends that evidence in the record demonstrates she meets the listing in Section
12.05C. She argues that the ALJ determined she had physical medical impairments, the intelligence
tests conducted by Dr. Vallette after the hearing demonstrate that her IQ is below 70, and her
testimony that she was in special education during her school years demonstrates “deficits in

27

adaptive functioning initially manifested ... before age 22.” Plaintiff asserts that such evidence, at
least, should have caused the ALJ to make factual findings regarding whether she met Listing 12.05.
Defendant counters that although Plaintiff “may have attended special education classes,”
such fact is “insufficient to establish the level of impairment necessary to meet Listing 12.05(C).”
Defendant also asserts that a later IQ score does not demonstrate a claimant experienced subaverage
intellectual functioning prior to age 22. Finally, Defendant contends that any error at Step 3 here
is harmless because the record shows Plaintiff cannot meet Listing 12.05C. For example, Plaintiff
never mentioned an intellectual impairment to her doctors or in her disability application, certain
records reflect that her intellectual functioning is not significantly subaverage, and it is undisputed
she worked in semi-skilled jobs in the past.
Plaintiff has the burden of proof at Step 3 and, to establish error, she must show that the
record demonstrates she meets the requirements of Listing 12.05C. See Crane v. Astrue, 369 F.
App’x 915, 921 (10th Cir. 2010); see also Lax v. Astrue, 489 F.3d 1080, 1085 (10th Cir. 2007) (“To
show than an impairment or combination of impairments meets the requirements of a listing, a
claimant must provide specific medical findings that support each of the various requisite criteria
for the impairment.”) (citing 20 C.F.R. §§ 404.1525, 416.925). While the record demonstrates
Plaintiff meets the IQ and impairment requirements of subsection 12.05C, the record does not
contain sufficient evidence showing she meets the capsule requirement: “significantly subaverage
general intellectual functioning with deficits in adaptive functioning initially manifested during the
developmental period; i.e., the evidence demonstrates or supports onset of the impairment before
age 22.”
28

“‘Adaptive functioning,’ which must be deficient under Listing 12.05, refers to how
effectively an individual copes with common life demands and how well [he or she] meet[s] the
standards of personal independence of someone with similar characteristics.” Haddock v. Astrue,
No. 09-cv-01922-LTB, 2010 WL 2197403, at *4 (D. Colo. May 28, 2010) (citation omitted). There
are ten areas of adaptive functioning apparently considered by mental health professionals:
communication, self-care, home living, social/interpersonal skills, use of community resources, selfdirection, functional academic skills, work, leisure, health and safety. [AR 55]; see, e.g., Lovelace
v. Astrue, No. 09-137-KSF, 2010 WL 5139349, *5 (E.D. Ky. Dec. 10, 2010) (listing “ten areas of
adaptive skills commonly used to evaluate overall adaptive functioning in assessing whether an
individual is mentally retarded”).
The Court notes first that the record contains no references to “mental retardation,”
“intellectual disability,” or any intellectual impairments suffered by the Plaintiff until Dr. Vallette’s
consultative examination conducted after the hearing in February 2009. Plaintiff asserts that she
“raised in her initial application for disability the issue of a mental impairment that significantly
limited her functioning,” and the document to which she refers is a form titled, “Function Report Adult - How your illnesses, injuries, or conditions limit your activities.” [AR 167-174] Plaintiff
references only the first page of this form, but the Court finds nothing on that page reflecting
Plaintiff’s belief she has a mental impairment. As for the remainder of the form, Plaintiff reports
that she takes care of her son; no one helps her take care of her son; she has “no problem” with
personal care; she needs no reminders for personal care or taking medication; she prepares her own
meals; she needs no help or encouragement to do laundry and ironing; she drives to church four
29

times a week; she shops for groceries in a motorized scooter; she handles her own finances; she
spends time on the phone or at home or church with friends/family; she has no problems getting
along with family, friends and authority figures; she follows written and oral instructions “very
well”; and she handles stress and changes in routine “very well.” [Id.] This form was completed on
December 13, 2006 when the Plaintiff was 51 years old. [Id.] The Court finds this evidence does not
support Plaintiff’s contention that she suffers “significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially manifested ... before the age of 22.”
However, Plaintiff argues that her time spent in special education during her school years
demonstrates she meets the capsule definition. Notably, Plaintiff’s testimony is the only evidence
in the record of this fact. “[A]bsent documentary evidence of a deficit prior to the age of twentytwo, the ALJ may find plaintiff’s testimony of participation in special education insufficient to
support a finding of meeting listing 12.05.” May v. Colvin, No. 2:12-cv-00700-EJF, 2013 WL
6732116, at *5 (D. Utah Dec. 19, 2013) (citing Gist v. Barnhart, 67 F. App’x 78, 82 (3d Cir. 2003)).
Moreover, the Court agrees that the lack of medical findings (or even notations) concerning an
intellectual impairment, in addition to Plaintiff’s previous work as a school bus driver from 19952003 [AR 158], belie the notion that Plaintiff suffers from an intellectual disability as defined in
Listing 12.05.
Accordingly, the Court finds no error by the ALJ in failing to evaluate whether Plaintiff had
a listed impairment pursuant to Listing 12.05 during Step 3.
C.

Whether the RFC Reflects Proper Limitations
The ALJ found that Plaintiff had the “residual functional capacity to perform light work as
30

defined in 20 CFR 416.967(b) except she can lift and carry up to 20 pounds occasionally and 10
pounds frequently; stand and walk about 6 hours during an 8-hour day; and sit about 6 hours during
an 8-hour day. The claimant can only occasionally climb, balance, stoop, kneel, crouch and crawl.”
[AR 30] In making this finding, the ALJ considered whether Plaintiff’s medically determinable
impairments produced her alleged symptoms and evaluated the intensity, persistence and limiting
effects of such symptoms. [Id.]
A residual functional capacity (“RFC”) assessment is “an administrative assessment of the
extent to which an individual’s medically determinable impairment(s), including any related
symptoms such as pain, may cause physical or mental limitations or restrictions that may affect his
or her capacity to do work related physical or mental activities.” SSR 96-8p, 1996 WL 374184 at
* 2. It is assessed “based on all of the relevant evidence in the case record, including information
about the individual’s symptoms and any ‘medical source statements.’” Id. “[T]here is no
requirement in the regulations for a direct correspondence between an RFC finding and a specific
medical opinion on the functional capacity in question.” Chapo v. Astrue, 682 F.3d 1285, 1288
(10th Cir. 2012).
Plaintiff contends that the ALJ erred in failing to consider the limitations of her carpal tunnel
syndrome and obesity in the RFC. Plaintiff also argues that the ALJ completely ignored her
medically determinable impairment of depression and assessed no restrictions based on the
limitations therefrom.
Defendant counters that the Plaintiff effectively challenges the ALJ’s credibility findings,
specifically concerning her back pain and carpal tunnel syndrome. Defendant argues that the ALJ’s
31

findings regarding Plaintiff’s obesity at Step 3 is sufficient for his RFC evaluation and that Plaintiff
fails to cite to evidence showing that her obesity limited her ability to perform light work. Finally,
Defendant asserts that the ALJ’s decision not to include mental restrictions in the RFC was
reasonable, given the lack of evidence of her mental impairments.
The Court finds first that the ALJ committed no error in assessing the RFC with respect to
Plaintiff’s carpal tunnel syndrome. The ALJ properly considered the medical evidence concerning
the condition, which was minimal, and discussed the lack of any further complaints by the Plaintiff
and of diagnostic testing to support the treating physician’s opinion of Plaintiff’s abilities to handle,
finger and feel.3 While the Plaintiff argues that she did not have the opportunity for treatment of her
carpal tunnel syndrome under her medical coverage, there is nothing demonstrating any barrier to
objective testing of the condition. In addition, the Court finds no error because the Plaintiff fails to
identify which portion(s) of the RFC lack restrictions for her alleged functional limitations in
handling, fingering and feeling. See Miller v. Astrue, 496 Fed.Appx. 853, 859–60 (10th Cir.2012)
(ALJ did not err when he did not include limitations for an impairment he found to be severe at step
two when that limitation was not “borne out by the evidentiary record.”).
However, the Court agrees with the Plaintiff that the ALJ erred in failing to consider
Plaintiff’s obesity and depression in his RFC assessment. The ALJ thoroughly analyzes Plaintiff’s
impairments of degenerative disc disease, diabetes mellitus and carpal tunnel syndrome, including
medical records and testimony by the Plaintiff concerning her symptoms and limitations. However,
3

Notably, the physician qualified her opinion by handwriting, next to her signature, in
capital letters, “Please note that the majority of my medical attention has been devoted to treating
her diabetes rather than her musculoskeletal pain complaints.” [AR 891]
32

while the ALJ determined that Plaintiff’s obesity was a severe impairment, he mentions it nowhere
in his evaluation and it is unclear from the RFC itself whether he assessed restrictions based upon
Plaintiff’s obesity. Wells v. Colvin, 727 F.3d 1061, 1068 (10th Cir. 2013) (“ In his RFC assessment,
the ALJ must consider the combined effect of all medically determinable impairments, whether
severe or not.”) (citing 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2)) (emphasis in original). The only
mention of obesity the ALJ makes in his decision (other than at Step 2) is in Step 3 at which he
makes the following finding:
Although there is no listing for obesity, Social Security Ruling 02-l p requires that
this impairment be considered under sections 1.00, 3.00, and 4.00, concerning
musculoskeletal, respiratory and cardiovascular impairments, respectively, in terms
of the potential effects obesity has in causing or contributing to impairments in those
systems. A thorough evaluation of the medical record, however, does not support
a finding that the claimant has any listing-level impairments caused by or impacted
by her obesity.
[AR 29] Even if true, however, the ALJ’s finding in this regard is insufficient as the regulations
require that he consider all medically determinable impairments throughout the remainder of the
five-step process.
Moreover, although he found the medically determinable impairment non-severe, the ALJ
was required to, but did not, mention Plaintiff’s depression in the RFC evaluation. Id. at 1068-69
(“[A] conclusion that the claimant’s mental impairments are non-severe at step two does not permit
the ALJ simply to disregard those impairments when assessing a claimant’s RFC and making
conclusions at steps four and five.”). With a lack of any analysis concerning Plaintiff’s depression,
the Court cannot determine whether the ALJ’s finding of non-disability is supported by substantial
evidence. Id. at 1071 (“[T]o the extent the ALJ relied on his finding of non-severity as a substitute
33

for adequate RFC analysis, the Commissioner’s regulations demand a more thorough analysis.”).
Because an analysis of these impairments is completely missing from the ALJ’s opinion, the
Court must remand the matter for a more thorough RFC analysis, including consideration of the
Plaintiff’s medically determinable impairments of obesity and depression.
CONCLUSION
In sum, the Court rejects the Plaintiff’s first and second arguments on appeal and finds the
ALJ’s analyses at Steps 2 and 3 are correct. The Court also finds that the ALJ properly considered
Plaintiff’s carpal tunnel syndrome in his RFC evaluation. However, the Court must conclude that
the ALJ failed to apply the correct legal standards in omitting any consideration of the Plaintiff’s
obesity and depression from his RFC analysis.
Therefore, the decision of the ALJ that Plaintiff Margaret Perez was not disabled is
REVERSED AND REMANDED.
Dated at Denver, Colorado this 29th day of October, 2014.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

34