Jolliff v. Commissioner, Social Security Administration

Filing 21

ORDER - The Commissioners decision is REVERSED and thiscase is REMANDED to the Commissioner for rehearing, by Magistrate Judge Kathleen M. Tafoya on 5/8/2018. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 17–cv–01390–KMT
ANGELA MAE JOLLIFF,
Plaintiff,
v.
CAROLYN COLVIN, COMMISSIONER OF SOCIAL SECURITY,
Defendant.

ORDER

This matter comes before the court on review of the Commissioner’s denial of Plaintiff
Angela Mae Jolliff’s application for disability insurance benefits and supplemental security
income under Titles II and XVI of the Social Security Act (“SSA”). (See generally Doc. No. 11,
Social Security Administrative Record [“AR”].)
Plaintiff filed her opening brief on September 18, 2017. (Doc. No. 15.) Defendant filed
her response on October 16, 2017 (Doc. No. 16), and a reply was filed on October 30, 2017.
(Doc. No. 17.) Jurisdiction is proper under 42 U.S.C. § 405(g).

BACKGROUND
Plaintiff suffers from multiple mental impairments. The first of which is post-traumatic
stress disorder (“PTSD”). To provide context, Plaintiff’s father abandoned her family when she
was two years old. (AR 433.) Plaintiff’s mother was physically and mentally abusive. (AR 344.)
In addition, boyfriends of Plaintiff’s mother raped her. (AR 451.) Such horrific experiences
manifested into PTSD by at least February 25, 2014; but given the nature of the condition, it is
near impossible to delineate the precise onset date. (AR 302.) Plaintiff suffers from anxiety and
trauma-related nightmares. (AR 351.) She sometimes cannot sleep without medication. She has
an aversion to men. (AR 214, 324, 351.)
Plaintiff also suffers from bipolar disorder. In August 2013, she stayed awake for five
straight days before having a psychotic episode and being hospitalized. (AR 350.) She was also
having suicidal thoughts at that time. (AR 342.) On August 26, 2013, Plaintiff reported
depression, “obsessive thoughts[,] and rumination.” (AR 338.) On May 15, 2014, she reported
rages that result in “self harming behaviors of cutting[.]” (AR 316.) On May 23, 2014, she
reported fears regarding medication, death from panic attacks, and social rejection. (AR 314.)
Three days later, Plaintiff presented “with high levels of distress causing marked interference in
interpersonal relationships and daily functioning.” (AR 312.) She lacks trust in others. (AR 336.)
Compounding Plaintiff’s mental impairments is schizophrenia. She has a family history
of the disease; both her father and her sister also suffer from it. (AR 432.) At the age of 11,
Plaintiff had “visions of hell” and considered suicide. (AR.425.) On August 28, 2013, Plaintiff
presented to the emergency room kicking, spitting, and unable to give a history of the events that

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brought her there.1 (AR 206.) She claimed that someone had put “counter curses” on her. (Id.)
Her Global Assessment of Functioning (“GAF”)2 score at admission was extremely low—18.
Her symptoms were so severe that she was isolated and placed in restraints. (AR 259.)
Throughout 2014-2015, Plaintiff continued experiencing auditory hallucinations. (AR 335, 349.)
She also reported that the medication (Zyprexa) caused her to have visual hallucinations in
addition to her auditory hallucinations. (AR. 362.) On August 11, 2015, during a panic attack,
Plaintiff suffered from auditory hallucinations instructing her to commit suicide.
THE DECISION
The Administrative Law Judge (“ALJ”) applied the five-step sequential evaluation
process to determine that Plaintiff was not disabled.3 (AR 11-22.) She found that that Plaintiff
had severe impairments including bipolar disorder, schizophrenia, PTSD, and panic disorder (AR
13), but that her medical conditions did not meet or equal the criteria of the disabling
impairments listed at 20 C.F.R. part 404, subpart P, appendix 1 (“Listings”). (AR 14-15.) The
ALJ found that Plaintiff had the Residual Function Capacity (“RFC”) to perform simple,
repetitive, low-stress work that did not involve contact with the public and only limited contact

1

As recognized by the ALJ, Plaintiff has required two further hospitalizations. (AR 16.)

2

See Moos RH et al, Global Assessment of Functioning (GAF) ratings: determinants and role as
predictors of one-year treatment outcomes, J Clin Psychol. 2000 Apr; 56(4):449-61.
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The five-step process requires the ALJ consider whether a claimant: (1) engaged in
substantial gainful activity during the alleged period of disability; (2) had a severe impairment;
(3) had a condition which met or equaled the severity of a listed impairment; (4) could return to
her past relevant work; and, if not, (5) could perform other work in the national economy. See
20 C.F.R. § 404.1520(a)(4), 416.920(a)(4); Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir.
1988.)
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with co-workers. (AR 15.) The ALJ then found at step five that Plaintiff could perform jobs
existing in the national economy—concluding that she was not disabled under the SSA. (AR 22.)
STANDARD OF REVIEW
To be disabling, the claimant’s condition must be so functionally limiting as to preclude
any substantial gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62
F.3d 335, 338 (10th Cir. 1995). Review of the Commissioner’s disability decision is limited to
determining whether the ALJ (1) applied the correct legal standard, and (2) whether the decision
is supported by substantial evidence. Hamilton v. Sec’y of Health and Human Servs., 961 F.2d
1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990).
Substantial evidence is evidence a reasonable mind would accept as adequate to support a
conclusion. Brown, 912 F.2d at 1196. Substantial evidence means “more than a mere scintilla,”
or such evidence as a “reasonable mind might accept as adequate to support a conclusion.”
Richardson, 402 U.S. at 401. Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
Further, “if the ALJ failed to apply the correct legal test, there is a ground for reversal
apart from a lack of substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir.
1993). The court “meticulously examine[s] the record as a whole, including anything that may
undercut or detract from the ALJ’s findings in order to determine if the substantiality test has
been met.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations omitted). And as the
Tenth Circuit observed in Baca v. Dep’t of Health & Human Servs., 5 F.3d 476, 480 (10th Cir.
1993), the ALJ has a basic duty of inquiry to “fully and fairly develop the record as to material
issues.” Id. This duty exists even when the claimant is represented by counsel. Id. at 480.

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ANALYSIS
Plaintiff raises several issues for consideration, but what lies at the core of this appeal is
(1) whether the ALJ improperly considered the opinion of Christina Pacheco, MA, LAC, NCC
under the relevant SSA regulations, and (2) whether the ALJ improperly assessed Plaintiff’s
credibility in light of objective evidence and subjective allegations in the record.
Because the court finds for Plaintiff on issue (1), remand is warranted. Upon remand,
however, and if Ms. Pacheco is afforded heightened weight, the ALJ will need to re-assess
Plaintiff’s credibility, the RFC determination and reconsider whether Plaintiff’s disabilities meet
or equal Listing 12.03 under SSA regulations.
A. SSR 06-03p: Ms. Pacheco4
Plaintiff challenges the ALJ’s assessment of Ms. Pacheco’s opinion—Plaintiff’s
therapist. Here, Plaintiff contends that although Ms. Pacheco is a non-acceptable medical source,
she is still a source that must be weighed in accordance with the factors set out in SSR 06-03p,
71 Fed. Reg. 45,593, 45,595. Those factors are substantially the same as those in 20 C.F.R. §
416.927(c) (treating physician).5

4

Christina Pacheco is a Licensed Professional Counselor. See Colorado Dept. of Regulatory
Agencies, Division of Professions & Occupations, “Verify a Colorado Professional or Business
License,” available at https://apps.colorado.gov/dora/licensing/Lookup/LicenseLookup.aspx (last
visited April 29, 2018).
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Notably, the multi-factor test in SSR 06-03p (non-acceptable medical source, such as a
therapist) and step two of the treating physician framework is near identical. See, § 416.927(c)
(acceptable medical sources such as a physician).
The ALJ stated that she considered the “treating physicians…[and[] granted them limited
weight.” (AR 19.) Incorrectly, however, the ALJ also included Ms. Pacheco’s opinion in this
analysis—a treating therapist, not a treating physician. (AR 20). To the extent that there is any
conflation in Plaintiff’s brief regarding the weight afforded to Ms. Pacheco (a treating therapist),
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Plaintiff contends that the ALJ failed to address the following factors when weighing Ms.
Pacheco’s opinion for the purpose of determining Plaintiff’s mental limitations—including: “(1)
How long the source has known and how frequently the source has seen the individual; (2) How
consistent the opinion is with other evidence; (3) The degree to which the source presents
relevant evidence to support an opinion; (4) How well the source explains the opinion; (5)
Whether the source has a specialty or area of expertise related to the individual's impairment(s);
and (6) Any other factors that tend to support or refute the opinion.” See, SSR 06-03p, 71 Fed.
Reg. 45,593, 45,595.6
Tellingly, and relevant to this case, the above factors are set in the following context as
expressly stated in SSR 06-03p:
With the growth of managed health care in recent years and the emphasis on containing
medical costs, medical sources who are not “acceptable medical sources,” such as nurse
practitioners, physician assistants, and licensed clinical social workers, have
increasingly assumed a greater percentage of the treatment and evaluation functions
previously handled primarily by physicians and psychologists. Opinions from these
medical sources, who are not technically deemed “acceptable medical sources” under our
rules, are important and should be evaluated on key issues such as impairment severity
and functional effects, along with the other relevant evidence in the file. (emphasis
added.)
While application (and explanation) of the each factors in SSR 06-03p is dependent on
the facts of each case, the court finds that there is limited express reference to the factors in the

the court finds that it can be traced back to the ALJ’s conflation—only reinforcing the need for
remand. Cf. Watkins v. Barnhart, 1350 F.3d 1297, 1301 (10th Cir. 2003) (outlining the Watkins
factors that are codified in § 416.927(c)).
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On pages 7-8 of Plaintiff’s brief, Plaintiff acknowledged that Ms. Pacheco was a “not an
acceptable medical source” and not entitled to “controlling weight” as is the case for treating
physician opinions under § 416.927(c). Defendant’s brief also acknowledges that SSR 06-03p is
the correct standard.
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ALJ’s decision. Because of this, the court finds that the ALJ’s first error is a legal one—i.e., the
ALJ failed to identify the correct legal framework and the relevant multifactor analysis as
articulated in SSR 06-03p, constituting reversible error and remand. See Wall, 561 F.3d at, 1052.
More critically, the ALJ has failed to apply the factors in SSR 06-03p so to assign proper
weight to Ms. Pacheco’s opinion. For instance, there is no reference to (1) how long Plaintiff has
been treated by Ms. Pacheco—being at least one year prior to issuing her opinion (AR 526-529),
(2) the nature and extent of the relationship, despite detailed notes in her mental limitation report
(AR 527-529), (3) the frequency that Ms. Pacheco treated Plaintiff, typically being a weekly
appointment, (4) Ms. Pacheco’s specialty as a licensed therapist, and (5) the degree that Ms.
Pacheco’s report was supported by other evidence in the record (being, for example, Plaintiff’s
hospitalizations) and ample other evidence demonstrating significant mental health symptoms
supporting Ms. Pacheco’s opinion.7 (AR 316, 321, 336, 340, 343, 362, and 377.)
These are just some of the factors that should have been addressed before consigning Ms.
Pacheco to “limited weight.” (AR 20.) On remand, Ms. Pacheco’s opinion should not be
afforded such short shrift. Indeed, evidence from counselors can provide the most probative
evidence on record. See SSR 06-03p (“[I]t may be appropriate to give more weight to the opinion
of a medical source who is not an acceptable medical source if he or she has seen the individual
more often than the treating source and has provided better supporting evidence and a better
explanation for his or her opinion.”)

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Plaintiff has experienced these symptoms even while taking medication. (AR 415.)
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B. Assessing Plaintiff’s Credibility
Plaintiff challenges the ALJ’s credibility assessment. In particular, SSR 96-7p requires an
ALJ to make a determination regarding a claimant’s credibility when pain or other symptoms are
alleged to contribute to the claimant’s disability:
When the existence of a medically determinable physical or mental impairment(s) has
been established, the intensity, persistence, and functionally limiting affects of the
symptoms must be evaluated to determine the extent to which the symptoms affect the
individual’s ability to do basic work activities. This requires the adjudicator to make a
finding about the credibility of the individual’s statements about the symptom(s) and its
functional effects.
SSR 96-7p. The ruling further states:
In determining the credibility of the individual’s statements, the adjudicator must
consider the entire case record, including the objective medical evidence, the individual’s
own statements about symptoms, statements and other information provided by treating
or examining physicians or psychologists and other persons about the symptoms and how
they affect the individual, and any other relevant evidence in the case record. An
individual’s statements about the intensity and persistence of pain or other symptoms or
about the effect the symptoms have on his [ . . . ] ability to work may not be disregarded
solely because they are not substantiated by objective medical evidence.8
Id.

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The SSA regulations lay out the criteria for an ALJ’s discussion of a claimant’s credibility:
It is not sufficient for the adjudicator to make a single, conclusory statement that “the
individual’s allegations have been considered” or that “the allegations are (or are not)
credible.” It is also not enough for the adjudicator simply to recite the factors that are
described in the regulations for evaluating symptoms. The determination or decision
must contain specific reasons for the finding on credibility, supported by the evidence
in the case record, and must be sufficiently specific to make clear to the individual and
any subsequent reviewers the weight the adjudicator gave to the individual statements
and the reasons for that weight.

SSR 96-7p.
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The Tenth Circuit has further articulated the requirements for an adequate credibility
determination. In determining a claimant’s credibility, an ALJ must:
…consider (1) whether [the c]laimant established a pain-producing impairment by
objective medical evidence; (2) if so, whether there is a “loose nexus” between the
proven impairments and the [c]laimant’s subjective allegations of pain; and (3) if
so, whether considering all the evidence, both objective and subjective, [the
c]laimant’s pain is in fact disabling.
Kepler v. Chater, 68 F.3d 387, 390 (10th Cir. 1995) (quoting Glass v. Shalala, 43 F.3d 1392,
1395 (10th Cir. 1994). The Tenth Circuit has also articulated factors that may be used in
assessing a claimant’s credibility:
Some of the possible factors include: the levels of medication and their effectiveness, the
extensiveness of the attempts (medical or nonmedical) to obtain relief, the frequency of
medical contacts, the nature of daily activities, subjective measures of credibility that are
peculiarly within the judgment of the ALJ, the motivation of and relationship between the
claimant and other witnesses, and the consistency or compatibility of nonmedical
testimony with objective medical evidence.
Huston v. Bowen, 838 F.2d 1125, 1132-33 (10th Cir. 1988). An ALJ must also consider the
entire case record in making a credibility determination. See Winfrey v. Chater, 92 F.3d 1017,
1021 (10th Cir. 1996). There, an ALJ based a credibility determination, in part, on the fact that
the claimant’s pension gave him an incentive not to work but ignored medical evidence of a
somatoform disorder. The Tenth Circuit found that the ALJ’s credibility determination was
inadequate. Id. The court reasoned that “the ALJ’s evaluation of plaintiff’s subjective complaints
was flawed by his . . . failure to consider . . . factors that were supported by the record.” Id.
The ALJ held that there were a number of factors that led “to the conclusion” that
Plaintiff is “less limited than alleged.” (AR 17.) In short, the ALJ found that Plaintiff lacked
credibility.

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Plaintiff contends that the “ALJ’s credibility determination is fatally flawed because the
ALJ failed to consider all evidence in the case record.” (Doc. No. 15 at 10.) The court disagrees.
Provided that the proper legal application has been made, substantial evidence—being “more
than a mere scintilla”—is all that is required to support an ALJ’s finding. Richardson, 402 U.S.
at 401. Regarding Plaintiff’s credibility, the ALJ has supplied just this.
In applying each of the Kepler prongs, the court finds that the first is met.9 That evidence
is extensive and summarized at least, in part, on pages two and three of this Order—documenting
Plaintiff’s PTSD, bipolar disorder, and schizophrenia. Many of these conditions were also
characterized as severe by the ALJ in the reasoning. (AR 13.)
While Plaintiff is successful on the first prong, it is the second and third prongs that pose
problems. In short, the ALJ gave three reasons why Plaintiff’s subjective allegations of disability
were “less limited than alleged.” (AR 17.) To truncate, the ALJ found that (1) Plaintiff’s
symptoms were sporadic, despite two hospitalizations and a GAF score as low as 18, (2) Plaintiff
“only met with her psychiatrist sporadically and was not entirely consistent with the degree of
symptomology alleged” and, (3) Plaintiff’s daily activities were “not entirely consistent with the
degree of anxiety and mental symptomology alleged.” (AR. 19.) This evidence, in toto,
constitutes substantial evidence to support the ALJ’s reasoning on prongs two and three. See
Kepler, 68 F.3d at 390.

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The first prong is modified somewhat in its application to a mental impairment. A
hallucination, for example, is difficult to determine from a purely objective standpoint. Unlike a
broken arm, which can be verified independently, a hallucination can only be assessed from the
patient’s perspective.
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Because Plaintiff cannot, at least, meet these additional prongs of the Kepler test, and
because there is a scintilla of evidence to support the ALJ’s credibility finding, the court rejects
Plaintiff’s arguments to the contrary.10
C. Harmless Error
Defendant tacitly raises the harmless error defense.11 Defendant argues that the ALJ’s
deficiencies were not harmful because the deficiencies were not prejudicial to Plaintiff. The
court, however, disagrees—particularly in light of the deficiencies that have been addressed
above. One of the effects flowing from the deficiencies is that the RFC determination may
require reformulation—i.e., once Ms. Pacheco’s opinion is re-assessed. This reformation may
lead to a disability finding in favor of Plaintiff. Given the possibility of this alternative result on
remand, the ALJ’s errors are anything but harmless—and probably err towards the more
significant end of the spectrum.
D. Remaining Arguments
Plaintiff raises additional issues related to the sufficiency of the underlying proceedings.
Because the court finds that the ALJ’s crediting of Ms. Pacheco was in error, which may impact
the RFC determination on remand, inter alia, it need not address the other arguments raised by

10

In finding for Defendant on this issue, the ALJ will need to be mindful on remand. If the ALJ
affords Ms. Pacheo’s opinion heightened weight beyond the weight that is currently assigned to
her opinion, her evidence may have a bearing on Plaintiff’s credibility—specifically, since
Plaintiff saw Ms. Pacheco on a weekly basis (as addressed earlier in this Order), then such
evidence would, seemingly, bolster Plaintiff’s subjective allegations going to her mental
impairments.

11

Courts apply harmless error cautiously in the administrative review setting. See
Fischer–Ross v. Barnhart, 431 F.3d 729 (10th Cir. 2005). An error is only harmless when the
court can “confidently say that no reasonable administrative fact-finder, following the correct
analysis, could have resolved the factual matter in any other way.” Id. at 733-34.
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Plaintiff—ever more so where the Defendant’s harmless error argument has been rejected. See
Madrid v. Barnhart, 447 F.3d 788, 792 (10th Cir. 2006) (when the ALJ’s error affected the
analysis as a whole, court declined to address other issues raised on appeal).
To be sure, however, the court expresses no opinion as to Plaintiff’s other arguments and
neither party should take the court’s silence as tacit approval or disapproval of how the evidence
was considered. The court does not intend by this opinion to suggest the result that should be
reached on remand; rather, the court encourages the parties, as well as the ALJ, to consider the
evidence and the issues anew.
CONCLUSION
For the reasons set forth above, the Commissioner’s decision is REVERSED and this
case is REMANDED to the Commissioner for rehearing.
Dated this 8th day of May, 2018.

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