Earhart v. Commissioner, Social Security Administration

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-01784-STV
B.E.,1
Plaintiff,
v.
LELAND DUDEK,2 Acting Commissioner of Social Security,
Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
Chief Magistrate Judge Scott T. Varholak
This matter is before the Court on Plaintiff B.E.’s Complaint seeking review of the
Commissioner of Social Security’s decision denying Plaintiff’s application for disability
insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and
XVI of the Social Security Act (“SSA”), 42 U.S.C. §§ 401 et seq., and 1381-83c,
respectively. 	[#1] 	The parties have both consented to proceed before this Court for all
proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c) and
D.C.COLO.LCivR 72.2. 	[#16] 	The Court has jurisdiction to review the Commissioner’s
1 Pursuant to D.C.COLO.LAPR 5.2(b), “[a]n order resolving a social security appeal on
the merits shall identify the plaintiff by initials only.”
2 	Martin 	O’Malley 	is 	the 	named 	Defendant 	in 	the 	Complaint 	as 	he 	was 	the
Commissioner of Social Security at the time the Complaint was filed. 	[#1] 	Leland
Dudek 	currently 	serves 	as 	the 	Acting 	Commissioner 	of 	Social 	Security.
https://www.ssa.gov/agency/commissioner (last accessed April 16, 2025). 	Pursuant to
Federal Rule of Civil Procedure 25(d), Leland Dudek, as Commissioner O’Malley’s
successor, “is automatically substituted as a party.” 	See also 42 U.S.C. § 405(g) (“Any
action instituted in accordance with this subsection shall survive notwithstanding any
change in the person occupying the office of Commissioner of Social Security or any
vacancy in such office.”).
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final decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). 	This Court has carefully
considered the Complaint [#1], the Social Security Administrative Record [#10], the
parties’ briefing [##11, 12, 13], and the applicable case law, and has determined that
oral argument would not materially assist in the disposition of this appeal. 	For the
following reasons, the Court REVERSES the Commissioner’s decision and REMANDS
this matter for further proceedings consistent with this Order.
I. 	LEGAL STANDARD
A. 	Five-Step Process for Determining Disability
The Social Security Act defines disability 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.”3 	42 U.S.C. §§
423(d)(1)(A), 1382c(a)(3)(A); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “This
twelve-month duration requirement applies to the claimant’s inability to engage in any
substantial gainful activity, and not just his underlying impairment.” 	Lax, 489 F.3d at
1084. 	“In 	determining 	whether 	an 	individual’s 	physical 	or 	mental 	impairment 	or
impairments are of a sufficient medical severity that such impairment or impairments
could be the basis of eligibility . . ., the Commissioner [ ] shall consider the combined
effect 	of 	all 	of 	the 	individual’s 	impairments 	without 	regard 	to 	whether 	any 	such
impairment, 	if considered separately, would 	be of such 	severity.” 	42 U.S.C. §§
423(d)(2)(B), 1382c(a)(3)(G).
3 “Substantial gainful activity” is defined in the regulations as “work that (a) [i]nvolves
doing 	significant 	and 	productive 	physical 	or 	mental 	duties; 	and 	(b) 	[i]s 	done 	(or
intended) for pay or profit.” 20 C.F.R. §§ 404.1510, 416.910; see also 20 C.F.R. §§
404.1572, 416.972.
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“The Commissioner is required to follow a five-step sequential evaluation process
to determine whether a claimant is disabled.” Hackett v. Barnhart, 395 F.3d 1168, 1171
(10th Cir. 2005). The five-step inquiry is as follows:
1. 	The Commissioner first determines whether the claimant’s work activity, if
any, constitutes substantial gainful activity;
2. 	If not, the Commissioner then considers the medical severity of the claimant’s
mental and physical impairments to determine whether any impairment or
combination of impairments is “severe;”4
3. 	If so, the Commissioner then must consider whether any of the severe
impairment(s) meet or exceed a listed impairment in the appendix of the
regulations;
4. 	If not, the Commissioner next must determine whether the claimant’s residual
functional capacity (“RFC”)—i.e., the functional capacity the claimant retains
despite his impairments—is sufficient to allow the claimant to perform his past
relevant work, if any;
5. 	If not, the Commissioner finally must determine whether the claimant’s RFC,
age, education and work experience are sufficient to permit the claimant to
perform other work in the national economy.
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Grogan v. Barnhart, 399 F.3d 1257,
1261 (10th Cir. 2005); Bailey v. Berryhill, 250 F. Supp. 3d 782, 784 (D. Colo. 2017).
The claimant bears the burden of establishing a prima facie case of disability at steps
one through four, after which the burden shifts to the Commissioner at step five to show
that the claimant retains the ability to perform work in the national economy. 	Wells v.
Colvin, 727 F.3d 1061, 1064 n.1 (10th Cir. 2013); Lax, 489 F.3d at 1084. “A finding that
the claimant is disabled or not disabled at any point in the five-step review is conclusive
and terminates the analysis.” 	Ryan v. Colvin, 214 F. Supp. 3d 1015, 1018 (D. Colo.
4 The regulations define severe impairment as “any impairment or combination of
impairments which significantly limits [the claimant’s] physical or mental ability to do
basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c).
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2016) (citing Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir.
1991)).
B. 	Standard of Review
In reviewing the Commissioner’s decision, the Court’s review is limited to a
determination of “whether the Commissioner applied the correct legal standards and
whether her factual findings are supported by substantial evidence.” Vallejo v. Berryhill,
849 F.3d 951, 954 (10th Cir. 2017) (citing Nguyen v. Shalala, 43 F.3d 1400, 1402 (10th
Cir. 	1994)). 	“With 	regard 	to 	the 	law, 	reversal 	may 	be 	appropriate 	when 	[the
Commissioner] either applies an incorrect legal standard or fails to demonstrate reliance
on the correct legal standards.” 	Bailey, 250 F. Supp. 3d at 785 (citing Winfrey v.
Chater, 92 F.3d 1017, 1019 (10th Cir. 1996)).
“Under 	the 	substantial-evidence 	standard, 	a 	court 	looks 	to 	an 	existing
administrative record and asks whether it contains sufficien[t] evidence to support the
agency’s 	factual 	determinations.” 	Biestek 	v. 	Berryhill, 	587 	U.S. 	97, 	102 	(2019)
(quotation omitted). 	“[W]hatever the meaning of ‘substantial’ in other contexts, the
threshold for such evidentiary sufficiency is not high.” 	Id. at 103. 	Substantial evidence
“means—and means only—such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” 	Id. (quotation omitted). 	“It requires more than a
scintilla, but less than a preponderance.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.
2009) (quoting Lax, 489 F.3d at 1084). “Evidence is not substantial if it is overwhelmed
by other evidence in the record or constitutes mere conclusion.” 	Grogan, 399 F.3d at
1261-62 (quoting Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992)). 	The
Court must “meticulously examine the record as a whole, including anything that may
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undercut or detract from the [Commissioner’s] findings in order to determine if the
substantiality test has been met.’” 	Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir.
2007) (quotation omitted). 	The Court, however, “will not reweigh the evidence or
substitute [its] judgment for the Commissioner’s.” Hackett, 395 F.3d at 1172.
II. 	BACKGROUND
Plaintiff was born in 1962. 	[AR 625]5 	He is a college graduate. 	[AR 652, 740]
Plaintiff is able to communicate in English. [AR 650] On March 1, 2022, Plaintiff filed a
Title II application for DIB and a Title XVI application for SSI. 	[AR 602, 623] 	In both
applications, Plaintiff claimed a disability onset date of January 1, 2014, and thus was
51 years old at the time of the alleged onset. 	[AR 603, 623] 	Plaintiff claims disability
based upon mental impairments, including postencephalitic neuropsychiatric disorder,
panic disorder, anxiety disorder, bipolar disorder, and major depressive disorder. 	[AR
603, 651] 	Plaintiff has worked as an office worker in a medical office and, most
recently, as a retail associate in an office supply store. 	[AR 652] 	Plaintiff’s last
employment was in January 2014. [Id.]
A. 	Medical Background6
Plaintiff has a history of mental health problems. 	On March 25, 2001, Plaintiff
was admitted to the hospital after experiencing delusions and hallucinations as well as
symptoms of catatonia and bizarre movements. [AR 739-42, 770-76, 798-807] Medical
records from this hospitalization indicate that Plaintiff had a history of anxiety disorder
5 	All 	references 	to 	“AR” 	refer 	to 	the 	sequentially 	numbered 	Social 	Security
Administrative Record filed in this case. [#10]
6 Because Plaintiff claims disability based upon psychological and cognitive issues and
his challenge to the ALJ’s decision focuses on the ALJ’s evaluation of these mental
impairments, the Court’s analysis of Plaintiff’s medical background likewise focuses on
Plaintiff’s psychological and cognitive difficulties.
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that lasted for eighteen months and that Plaintiff had also been treated for mild
depression and a history of obsessional personality traits. 	[AR 739] 	Plaintiff had been
on Prozac for approximately six months but one week before his hospital admission had
abruptly discontinued the medication because he felt the Prozac had contributed to his
flu-like illness. 	[AR 739, 772] 	A brain MRI revealed a left medial temporal lobe
prominent sulci and Plaintiff appears to have been diagnosed with viral encephalitis.
[AR 743, 884, 1012]
After the first few days of admission, Plaintiff’s mental state deteriorated and he
experienced periods of insomnia. 	[AR 741] 	By April 5, however, Plaintiff’s mental
status had improved dramatically and he no longer displayed the symptoms of catatonia
and bizarre movements. 	[Id.] 	Plaintiff was discharged on April 9 and was instructed to
remain on Seroquel for six months.7 [Id.]
There are very few medical records between 2001 and 2015. In December 2015
Plaintiff began participating in psychological treatment sessions. [AR 892-1004] During
a December 1, 2015 visit, Plaintiff explained that he had not experienced any mental
health problems until his viral encephalitis diagnosis. 	[AR 1002] 	After that, Plaintiff
began experiencing insomnia, extreme anxiety, and panic attacks. 	[Id.] 	Plaintiff said
that the medications helped with the anxiety and panic attacks but had never made
them go away. [Id.] During the treatment session, Plaintiff described his mood as “OK.”
[AR 	1003] 	His 	attention, 	concentration, 	and 	short-term 	memory 	were 	listed 	as
“impaired” and his thought process was described as “tangential at times.” [Id.]
7 After this incident, Plaintiff began experiencing seizures. 	[AR 884, 1012] 	A February
20, 2014 medical record indicates that Plaintiff experienced a seizure and fell, hitting his
head on the floor. [AR 876, 882]
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During a January 2016 treatment session, Plaintiff indicated that his mental
status was largely unchanged. 	[AR 997] 	He said his mood was “OK” though anxiety
remained his biggest complaint. 	[Id.] 	Plaintiff was described as “fully oriented” though
his short-term memory, attention, and concentration were listed as “impaired” and his
thought process was described as “repetitive, tangential at times.”8 	[AR 998-99]
Plaintiff’s responses to a depression questionnaire suggested moderate depression.
[AR 1000]
Plaintiff reported during a February 2016 treatment session that he continued to
experience anxiety and was only getting 3-4 hours of sleep per night. 	[AR 990]
Plaintiff’s responses to a depression questionnaire suggested mild depression. 	[AR
993] 	During a March 3, 2016 treatment session, Plaintiff indicated that his sleep and
anxiety 	seemed 	to 	be 	getting 	better 	though 	his 	responses 	to 	the 	depression
questionnaire suggested moderately severe depression. 	[AR 985, 988] 	And during a
treatment session later that month, Plaintiff indicated that he felt that the medications
were helping with his anxiety and his responses suggested mild depression. 	[AR 980,
983]
During a May 3, 2016 treatment session, Plaintiff stated that he was “feeling
pretty much back to normal even though [it had] been a stressful month.” [AR 975] His
responses to the depression questionnaire suggested either no depression or minimal
depression. [AR 978] Plaintiff believed that gabapentin was helping him. [AR 975]
8 Treatment records throughout 2016 and 2017 contain similar notations. 	[AR 893-94,
898-89, 903-04, 909-10, 914-15, 920-21, 926-27, 931-32, 936-37, 941-42, 946-47, 951-
52, 956-57, 961-62, 966-67, 971-72, 976-77, 981-82, 986-87, 991-92] 	Beginning in
April 2017 the notes also reflect impaired long-term memory. 	[AR 894, 899, 904, 910,
915, 921, 927, 932]
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Plaintiff reported doing “OK” during a June 2, 2016 treatment session. 	[AR 970]
He said that his anxiety was at a good level in the morning but increased during the day
until he could take his nighttime medications. 	[Id.] 	His questionnaire responses
suggested mild depression. 	[AR 973] 	Notes from a treatment session from the end of
the month reflect some family troubles though Plaintiff appeared to be handling those
stressors appropriately. [AR 965] Plaintiff described his anxiety as “manageable.” [Id.]
His responses to the depression questionnaire suggested either no depression or
minimal depression. [AR 968]
During a July 2016 treatment session, Plaintiff stated that he was sleeping “pretty
well” and described his mood as “pretty good.” 	[AR 960-61] 	His questionnaire
responses suggested mild depression. [AR 963] In September, Plaintiff similarly stated
that he had been doing “pretty well overall.” 	[AR 955] 	He indicated that the flu had
caused his anxiety to increase though the anxiety had come back down once the illness
went away. [Id.] His questionnaire responses suggested mild depression. [AR 958]
Plaintiff returned for a treatment session in December 2016. 	[AR 950-54] 	He
stated that he was doing "OK" though the change in the weather had decreased
Plaintiff’s energy and he was not sleeping as well. [AR 950] As a result, his anxiety had
increased slightly. 	[Id.] 	His questionnaire responses suggested moderate depression.
[AR 953]
During a February 2, 2017 treatment session, Plaintiff reported negative side
effects from taking a generic Seroquel prescription. 	[AR 945] 	He said he went days
without sleep and his anxiety skyrocketed. 	[Id.] 	He also reported experiencing panic
attacks. [Id.] His questionnaire response suggested moderate depression. [AR 948]
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Plaintiff reported continued difficulty sleeping during a March 2, 2017 treatment
session. 	[AR 940] 	He stated that he was unmotivated and his focus was worse. 	[Id.]
His questionnaire responses reflected moderately severe depression. [AR 943] During
a March 21 treatment session, Plaintiff stated that he had been having nightmares and
was sleepwalking. 	[AR 935] 	He said that his anxiety was getting worse, a feeling that
was 	reflected 	in 	other 	medical 	records 	from 	that 	month. 	[AR 	827, 	935] 	His
questionnaire responses reflected moderate depression. [AR 938]
Notes 	from 	an 	April 	11, 	2017 	treatment 	session 	reflect 	that 	Plaintiff 	was
continuing to have difficulty sleeping and was sleepwalking, and was continuing to
suffer from panic attacks. 	[AR 930] 	He reported that things had been “OK.” 	[Id.]
Responses to his depression questionnaire suggested mild depression. 	[AR 933]
Plaintiff reported similar problems with sleeping and sleepwalking during a treatment
session later that month. [AR 925]
During a May 17, 2017 treatment session, Plaintiff reported being under a lot of
stress. 	[AR 919] 	He stated that he was experiencing waves of depression, particularly
at night. 	[Id.] 	He reported trouble sleeping and his medication compliance appeared
erratic. 	[Id.] 	His questionnaire responses suggested moderately severe depression.
[AR 922]
Plaintiff reported increased anxiety during a June 14, 2017 treatment session.
[AR 913] 	His panic attacks were frequent and he was having difficulty sleeping. 	[Id.]
His questionnaire responses indicated moderately severe depression. [AR 916] During
a treatment session the following month, Plaintiff reported continued difficulty sleeping
and his questionnaire responses again reflected moderately severe depression. 	[AR
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908, 911] During a phone call after his July treatment session, Plaintiff reported anxiety
and panic attacks. [AR 907]
During an August 29, 2017 treatment session, Plaintiff reported constant anxiety.
[AR 902] 	He expressed stress over his finances, difficulty sleeping, and feelings of
hopelessness. 	[Id.] 	Plaintiff’s questionnaire responses reflected severe depression.
[AR 905] 	During an October 10 session, Plaintiff reported “a string of bad things
happen[ned].” 	[AR 897] 	His anxiety levels remained the same and he reported
continued panic attacks and difficulty sleeping. 	[Id.] 	His questionnaire suggested
moderate depression. 	[AR 900] 	Records from a December 5 treatment session reflect
a lack of improvement in Plaintiff’s anxiety levels and continued panic attacks and
difficulty sleeping. 	[AR 892] 	Nonetheless, Plaintiff reported an improvement in his
mood, though his mood questionnaire still reflected moderately severe depression. [AR
892, 895]
On February 28, 2019, Plaintiff underwent a psychiatric consultation due to a
recent move to Colorado. 	[AR 1060-64] 	Plaintiff reported that his most serious
symptoms were a perpetual state of anxiety and insomnia. 	[AR 1060] 	Plaintiff
presented with clear speech and cognition, no signs of a thought disorder, but anxious
mood and affect. 	[Id.] 	Plaintiff’s memory and cognitive ability were intact. 	[AR 1061]
Medical records from April and May 2019, however, show that Plaintiff had been off his
medications. [AR 1054, 1057] These records indicate that Plaintiff felt that he was non-
functional and paralyzed by anxiety. 	[Id.] 	Plaintiff also stated that he was having
sleeping problems. [Id.] Nonetheless, he appeared alert and oriented. [Id.]
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On July 19, 2019, Plaintiff reported to the emergency department stating that he
had not slept for the past five days. 	[AR 1028] 	He indicated that he had been off his
medications for a month due to financial circumstances. 	[Id.] 	On September 5, 2019,
Plaintiff was taken to the emergency department as a result of an apparent accidental
drug overdose. 	[AR 1017-18] 	A CT of the head was performed which was largely
unremarkable. [AR 1021] At the time of the overdose, Plaintiff had been in a homeless
shelter. [AR 1017]
Medical records from late 2019 describe Plaintiff as alert and oriented, with
appropriate mood and affect. 	[AR 1040, 1045] 	On December 26, 2019, Plaintiff
underwent a consultation and administration of a Montreal Cognitive Assessment
(“MoCA”). 	[AR 1037-38] 	The MoCA indicated mild cognitive impairment. 	[AR 1037]
Plaintiff’s concentration and attention were good. 	[AR 1038] 	He endorsed anxiety and
insomnia. [AR 1037]
Medical records from early 2020 describe Plaintiff as alert and oriented, with
appropriate mood and affect. 	[AR 1032, 1035, 1304] 	And on February 14, 2020,
Plaintiff reported to a treating physician that he was feeling stable. 	[AR 1031] 	Medical
records from July 20, 2020 likewise indicate that Plaintiff was coping well, though he
was currently in a homeless shelter. 	[AR 1297] 	Plaintiff indicated that his anxiousness
and depression, 	while 	significant, were well-managed by medications. 	[Id.] 	His
depression screening questionnaire reflected moderate depression. [AR 1298] On July
29, Plaintiff had a telehealth visit in which he indicated that he was doing well with his
medications. [AR 1291]
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On 	September 	22, 	2020, 	Plaintiff 	reported 	to 	the 	emergency 	department
complaining of anxiety. 	[AR 1328] 	Plaintiff was alert and oriented. 	[AR 1330] 	Plaintiff
indicated that his primary care doctor was concerned that Plaintiff was addicted to and
abusing his medications. 	[AR 1331] 	Medical notes from October indicate that Plaintiff
was attempting to cut back on his clonazepam. 	[AR 1283, 1285, 1287] 	Notes from a
December 9, 2020 appointment indicate that Plaintiff had stopped taking the drug for six
weeks and that Plaintiff was having difficulty sleeping. 	[AR 1281] 	An MRI of the head
from that date was unremarkable. 	[AR 1310] 	An EEG from December 14 was also
largely unremarkable. 	[AR 1347-48] 	Notes from a December 23 consultation indicate
that Plaintiff was on a lower dose of clonazepam and was feeling very anxious
throughout the day. [AR 1279]
During an April 28, 2021 medical appointment, Plaintiff indicated that he cannot
sleep well without Seroquel and that he was in a perpetual state of anxiety. 	[AR 1274]
Records from a May 4 medical appointment, however, indicate that Plaintiff’s anxiety
was much better after resuming clonazepam. [AR 1271] He also indicated that he was
sleeping well with Seroquel. 	[Id.] 	Records from both April and May state that Plaintiff
was alert and oriented and his mood and affect were appropriate. 	[AR 1272, 1275]
Nonetheless, both note mild cognitive impairment that needed monitoring. [Id.]
Records from July 2021 indicate that Plaintiff was doing well overall, but that he
still had some anxiety symptoms throughout the day. 	[AR 1265] 	He is described as
alert and oriented. 	[Id.] 	Records from August and October 2021 reflect stable moods
and describe Plaintiff as alert and oriented. [AR 1259, 1263]
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On March 25, 2022, Plaintiff attended a clinical appointment for a psychological
evaluation. 	[AR 1096] 	He described his encephalitis diagnosis and explained that he
had not been seen by a neurology specialist since that diagnosis. 	[Id.] 	Plaintiff was
engaged and his interactions were appropriate for the situation. [AR 1097] His thinking
was linear and logical and he appeared to have sound judgment. 	[Id.]
On May 19, 2022, Plaintiff underwent a sleep medicine consultation with the
Colorado Sleep Institute. [AR 1112-14] Plaintiff indicated that his sleep had been better
since beginning Seroquel and clonazepam. 	[AR 1114] 	The Colorado Sleep Institute
recommended 	that 	Plaintiff’s 	oxygen 	saturations 	be 	checked 	while 	sleeping 	to
determine if nocturnal hypoxemia could be an underlying cause of Plaintiff’s insomnia.
[Id.]
During a May 27, 2022 medical visit, Plaintiff reported having difficulty sleeping.
[AR 1094] Nonetheless, his mood was good and he denied delusions or hallucinations.
[Id.] 	He was alert and responded appropriately during the interview. 	[Id.] 	His thinking
was linear and logical and his judgment appeared sound. [Id.]
During a July 5, 2022 medical appointment, Plaintiff stated that his medications
were “going well” and his mood was “good.” 	[AR 1090] 	Plaintiff denied delusions or
hallucinations. 	[Id.] 	Plaintiff was cooperative and his articulation was clear and
understandable. [Id.] His thinking was linear and logical. [Id.]
August 12, 2022 medical records indicate that Jessica Bennett, the Executive
Director at the shelter where Plaintiff was staying, had concerns over Plaintiff’s mental
health. [AR 1089] According to the records, Ms. Bennett had noticed a “drastic decline”
in Plaintiff’s mental status which was “very concern[ing].” 	[Id.] 	Ms. Bennett indicated
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that Plaintiff “gets lost in the parking lot at Walmart across the street, becomes confused
and takes more of his meds [than] he should.” [Id.]
During a September 13, 2022 psychiatric appointment, Plaintiff indicated that he
was “doing okay” and did not have any psychiatric symptoms. 	[AR 1087] 	His mood
was good and he responded appropriately to questions. 	[Id.] 	Plaintiff’s affect was
stable and his speech was appropriate for the situation. [Id.]
Medical records from October 28 indicate that things were “going okay” for
Plaintiff and that he was not having psychiatric symptoms. 	[AR 1085] 	Plaintiff denied
delusions or hallucinations. 	[Id.] 	Plaintiff was alert and responded appropriately to
questions. [Id.] His affect was stable and his thought process was logical. [Id.]
During a December 30, 2022 medical appointment, Plaintiff described his mood
as good and indicated that things were going well with his medications. 	[AR 1186]
Plaintiff denied delusions or hallucinations. 	[Id.] 	His speech was appropriate and his
thought process was logical. [Id.]
On November 22, 2023, Plaintiff was struck by a motor vehicle while walking
across the street. [AR 12] The vehicle was travelling approximately ten to fifteen miles
per hour at the time. 	[Id.] 	Plaintiff suffered a left tibial plateau fracture, a left hip
contusion, an intracranial hemorrhage, and a C-spine injury. 	[AR 36] 	He needed
surgery for the left tibia fracture. [AR 15] A CT of the head and C-spine were negative.
[AR 43] 	Plaintiff was still homeless at the time of the accident. [AR 17] He underwent
occupational therapy while in the hospital and was eventually discharged on December
7, 2023. [AR 63-424]
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B. 	Opinion Evidence9
On December 18, 2013, Plaintiff was evaluated by Adi A. Gerblich, M.D., an
examining agency source. [AR 809-15] Dr. Gerblich’s evaluation was primarily focused
on Plaintiff’s physical condition, but Dr. Gerblich did indicate that Plaintiff would need
continuous follow-up treatment for his seizures and panic attacks. [Id.] Dr. Gerblich did
not note any sedentary activity limitations. [AR 811]
On 	March 	26, 	2014, 	Anna 	Grossman-McKee, 	Ph.D., 	provided 	a 	treatment
summary concerning her treatment of Plaintiff. 	[AR 817-18] 	Dr. Grossman-McKee
indicated that she began treating Plaintiff in October 2007 and Plaintiff had attended a
total of 16 visits with Dr. Grossman-McKee. [AR 817] She stated that Plaintiff had been
previously diagnosed with bipolar disorder I, bipolar disorder II, generalized anxiety
disorder, and major depressive disorder, recurrent, moderate. 	[Id.] 	Dr. Grossman-
McKee stated that Plaintiff had previously been prescribed a number of medications but,
at that time, was taking Ambien, Seroquel, Klonopin, and Cymbalta. 	[Id.] 	She further
stated that Plaintiff was working with his health care providers to assess the cause and
course of treatment for seizures. 	[Id.] 	She recommended that Plaintiff be evaluated by
a neurologist and neuropsychologist as she suspected possible impairment in Plaintiff’s
cognitive functioning. [AR 818] She further opined that Plaintiff’s cognitive impairment,
combined with his gastrointestinal and back problems, would impact his ability to work
full time. [Id.]
On February 20, 2018, Dorothy Bradford, M.D., an examining agency source,
evaluated Plaintiff. 	[AR 1008-13] 	Dr. Bradford noted Plaintiff’s 2001 hospitalization for
9 	Once 	again, 	the 	Court 	focuses 	on 	the 	opinion 	evidence 	related 	to 	Plaintiff’s
psychological issues and cognitive difficulties.
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encephalitis and that, since that time, Plaintiff had trouble sleeping and suffered from
anxiety and panic attacks. 	[AR 1012] 	Dr. Bradford also noted that Plaintiff has taken
clonazepam, escitalopram, cyclobenzaprine, quetiapine, and oxcarbazepine. 	[Id.] 	She
noted that Plaintiff was alert to person, place and time and concluded that there were no
clinical neurological deficits from Plaintiff’s encephalitis. [AR 1013]
On July 20, 2020, Landrey Fagan, M.D., completed a Colorado Department of
Human Services form. 	[AR 1190] 	Dr. Fagan indicated that Plaintiff suffered from
neurological disorders, mental or cognitive disorders, psychophysiological insomnia,
cognitive impairment, and panic attacks. 	[Id.] 	According to Dr. Fagan, Plaintiff had a
total disability and was unable to work full time at any job. [Id.]
On January 3, 2023, Andrea Szporn, Ph.D., performed a psychiatric records
review. 	[AR 482-83] Dr. Szporn opined that Plaintiff had mild impairments in his ability
to understand, remember, or apply information, and in his ability to concentrate, persist,
or maintain pace. 	[AR 483] 	Dr. Szporn concluded that Plaintiff’s mental impairments
were non-severe. [Id.]
On February 5, 2023, Mark Suyeishi, Psy.D., performed a psychiatric records
review. 	[AR 490-91, 497-98] 	Like Dr. Szporn, Dr. Suyeishi concluded that Plaintiff did
not suffer from a severe mental impairment. 	[AR 490-91] 	Dr. Suyeishi based his
conclusion on an apparent lack of sufficient records. [AR 498]
On June 28, 2023, Rebecca Shtulman, Ph.D., conducted a neuropsychological
assessment. [AR 1195-1203] Dr. Shtulman noted that Plaintiff’s speech was normal in
tone but was laconic. 	[AR 1198] 	Plaintiff was alert and maintained adequate attention
throughout testing. 	[Id.] 	Dr. Shtulman noted that Plaintiff appeared to have cognitive
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deficits. 	[Id.] 	Overall, the neuropsychological evaluation revealed a pattern of both
relative strengths and weaknesses. [AR 1200] Plaintiff’s intellectual abilities were in the
average range. 	[Id.] 	Plaintiff’s scores reflected marked memory deficits with a variable
pattern of dysfunction. [AR 1199-1200] Testing also reflected a weakness in executive
functioning, though this too was variable with tasks. 	[AR 1200] 	According to Dr.
Shtulman: 	“Taken 	together, 	[Plaintiff’s] 	test 	results 	reflect[ed] 	significant 	cognitive
weaknesses, and he appear[ed] to experience difficulty with some aspects of daily
independent functioning as well, thus warranting a diagnosis of Major Neurocognitive
Disorder.” [Id. (emphasis omitted)] Dr. Shtulman further noted that Plaintiff’s self-report
mood inventory score was in the moderate-severe range for depression and in the
moderate 	range 	for 	anxiety. 	[Id.] 	Based 	upon 	the 	evaluation, 	Dr. 	Shtulman
recommended that Plaintiff receive ongoing support as he would likely struggle to live
independently. [AR 1201]
C. 	Procedural History
Plaintiff’s applications for DIB and SSI were initially denied on January 4, 2023.
[AR 474, 479] 	Plaintiff requested reconsideration of this decision and on February 27,
2023, Plaintiff’s applications were again denied. 	[AR 486, 493] 	On March 13, 2023,
Plaintiff filed a request for a hearing before an Administrative Law Judge (“ALJ”). 	[AR
523-24] 	A hearing was conducted before ALJ Erin Justice on September 26, 2023, at
which Plaintiff, Ms. Bennett, and vocational expert (“VE”) Daniel Best testified. [AR 453-
73] Plaintiff was represented at the hearing by attorney Brendan Conley. [See AR 428]
On November 6, 2023, the ALJ issued a decision denying Plaintiff benefits. 	[AR
428-45] 	Plaintiff timely requested a review of that decision by the Appeals Council
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which denied his request for review on April 22, 2024. 	[AR 1-7] 	Plaintiff timely filed an
appeal with this Court on June 26, 2024. 	[#1] 	Because the Appeals Council denied
Plaintiff’s appeal, the ALJ’s decision is the final decision of the Commissioner for
purposes of this appeal. See 20 C.F.R. §§ 404.981, 416.1481, 422.210.
D. 	The ALJ’s Decision
The ALJ denied Plaintiff’s applications for DIB and SSI after evaluating the
evidence pursuant to the five-step sequential evaluation process. 	[AR 428-40] 	At step
one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity
since January 1, 2014, the alleged onset date. 	[AR 430] 	At step two, the ALJ found
that Plaintiff had the following severe impairments: seizure disorder, degenerative disc
disease, osteoarthritis of the right knee, depressive disorder, and anxiety disorder. [AR
430-31] 	At step three, the ALJ concluded that Plaintiff does not have an impairment or
combination of impairments that meets or medically exceeds the severity of one of the
listed impairments in the appendix of the regulations. [AR 431-33]
Following step three, the ALJ determined that Plaintiff retained the RFC to
perform “medium work” as defined in 20 C.F.R. § 404.1567(c) and 416.967(c), but with
the following limitations:
[Plaintiff] can occasionally lift 50 pounds and frequently lift 25 pounds. He
can stand and/or walk for a total of 6 hours and sit for 6 hours in an 8-hour
day. He can never climb ladders, ropes, and scaffolds. He must avoid all
exposure 	to 	unprotected 	heights 	and 	heavy 	machinery. 	He 	can
understand, remember, and perform simple work. 	He cannot perform
strict production pace work such as assembly and line work. 	He can
tolerate occasional changes in the workplace.
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[AR 433-34] 	The ALJ provided a narrative setting forth the evidence considered in
determining the RFC and explaining the ALJ’s consideration of the medical opinions in
the record. [AR 434-38]
At step four, the ALJ found that Plaintiff was unable to perform any of his past
relevant work. 	[AR 438] 	Finally, at step five, the ALJ concluded that, considering
Plaintiff’s age, education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy that Plaintiff can perform. 	[AR 438-39]
Specifically, the ALJ agreed with the VE’s testimony opining that Plaintiff could perform
the following representative occupations: 	bundle clerk, laundry worker, and automobile
detailer. 	[AR 439] 	Accordingly, the ALJ determined that Plaintiff was not under a
disability from January 1, 2014 through November 6, 2023 (the date of the ALJ’s
decision). [AR 439-40]
III. 	ANALYSIS
Plaintiff raises a single challenge to the ALJ’s decision, claiming that the ALJ
erred at step three because she gave insufficient consideration to the Paragraph C
criteria of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00.
[#11 at 12-18]10 	Plaintiff asks the Court to reverse the Commissioner’s denial of
benefits and remand for payment of benefits pursuant to 42 U.S.C. § 405(g). [Id. at 19]
The Court begins with an analysis of the ALJ’s opinion then turns to Plaintiff’s request
for a remand for payment of benefits.
10 For consistency and clarity, the Court refers to the actual page number of the .pdf
document uploaded to the Electronic Court Filing system, rather than to the numbering
printed on each page.
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A. 	The ALJ’s Step 3 Analysis
As noted above, at step three the Commissioner must determine whether any of
the plaintiff’s severe impairments meets or medically exceeds the severity of one of the
listed impairments in the appendix of the regulations (“the Listings”). 	See 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4); Grogan, 399 F.3d at 1261; Bailey, 250 F. Supp. 3d at
784. To meet a Listing, the claimant’s impairment must “satisf[y] all of the criteria of that
listing, 	including any relevant 	criteria in the 	introduction, and meet[] the duration
requirement.” 	20 	C.F.R. 	§ 	416.925(c)(3). 	The 	claimant 	bears 	the 	burden 	of
demonstrating 	that 	her 	impairment 	meets 	or 	equals 	the 	requirements 	of 	a 	listed
impairment, Fischer-Ross v. Barnhart, 431 F.3d 729, 732 (10th Cir. 2005), but it is
nevertheless “the responsibility of the ALJ to articulate the specific reasons for finding
that the listing has not been met, including a discussion of ‘the uncontroverted evidence
that supports the claimant’s application for benefits, and the significantly probative
evidence that he or she rejects,’” Howarth v. Berryhill, No. 3:16-CV-1844 (JCH), 2017
WL 6527432, at *8 (D. Conn. Dec. 21, 2017) (citation omitted)). 	See also Clifton v.
Chater, 79 F.3d 1007, 1009 (10th Cir. 1996).
According 	to 	Plaintiff, 	the 	ALJ 	failed 	to 	give 	adequate 	explanation 	for 	her
conclusion that Plaintiff failed to satisfy Listing 12.02, neurocognitive disorders. 	[#11 at
12-18] Listing 12.02 contains three paragraphs. 20 C.F.R., Pt. 404, Subpt. P, App. 1, §
12.02. 	To satisfy Listing 12.02, a claimant must satisfy the requirements of Paragraph
A and the requirements of either Paragraph B or Paragraph C. Id.
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Plaintiff contends that the ALJ failed to adequately explain her conclusion that
Plaintiff failed to satisfy the Paragraph C requirements. 	[#11 at 12-18] 	Paragraph C
requires a claimant to show that:
[The claimant’s] mental disorder in this listing category is ‘serious and
persistent,’ that is, [the claimant] ha[s] a medically documented history of
the existence of the disorder over a period of at least 2 years, and there is
evidence of both:
1. 	Medical 	treatment, 	mental 	health 	therapy,
psychosocial support(s), or a highly structured setting(s) that
is 	ongoing 	and 	that 	diminishes 	the 	symptoms 	of 	[the
claimant’s] mental disorder (see 12.00G2b); and
2. 	Marginal 	adjustment, 	that 	is, 	[the 	claimant] 	ha[s]
minimal capacity to adapt to changes in [his] environment or
to demands that are not already part of [the claimant’s] daily
life (see 12.00G2c).
20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.02.
Here, in assessing Paragraph C, the ALJ stated:
The undersigned has also considered whether the paragraph C criteria
are satisfied. 	In this case, the evidence fails to establish the presence of
the paragraph C criteria. 	The record does not establish that the claimant
has only marginal adjustment, that is, a minimal capacity to adapt to
changes in the claimant’s environment or to demands that are not already
part of the claimant’s daily life.
[AR 433] 	Because the ALJ concluded that Plaintiff did not meet or equal a Listing, she
was required to “discuss the evidence and explain why [s]he found that [Plaintiff] was
not disabled at step three.” Clifton, 79 F.3d at 1009. The ALJ’s conclusory statement—
which merely parrots the standard for determining marginal adjustment—fails to satisfy
this requirement; it simply does not enable the Court to “assess whether relevant
evidence adequately supports the ALJ’s conclusion that [Plaintiff’s] impairments did not
meet or equal” Listing 12.02, and thus fails to satisfy the ALJ’s obligations at Step 3. Id.
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The Commissioner nonetheless argues that the ALJ’s analysis was sufficient
once the Court considers other portions of the ALJ’s opinion. 	[#12 at 9-11] 	The
Commissioner points to the ALJ’s conclusion that Plaintiff had only moderate limitations
in adapting and managing himself and her conclusion that Plaintiff had a significant
reduction in symptoms with medication. 	[Id. at 9-10] 	According to the Commissioner,
evidentiary support exists for these conclusions and the fact that this Court may have
reached a different conclusion does not justify reversal. [Id. at 10-11]
“[I]nadequate analysis at step three may constitute harmless error if the ‘ALJ's
findings at other steps of the sequential process [] provide a proper basis for upholding
a step three conclusion that a claimant's impairments do not meet or equal any listed
impairment.’” 	Hawkins v. Colvin, No. 2:13-cv-00980-EJF, 2015 WL 1481150, at *8 (D.
Utah Mar. 31, 2015) (quoting Fischer-Ross, 431 F.3d at 733). 	An ALJ’s error is
harmless when the court finds that in light of the evidence that the ALJ considered, “no
reasonable administrative factfinder, following the correct analysis, could have resolved
the factual matter in any other way.” Fischer-Ross, 431 F.3d at 733-34 (quoting Allen v.
Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004)).
Here, the Court cannot opine that no reasonable factfinder could conclude that
Plaintiff has a minimal capacity to adapt to changes in his environment or to demands
that are not already part of his daily life. 	Indeed, Ms. Bennett’s testimony at the
administrative 	hearing 	would 	support 	such 	a 	conclusion. 	The 	ALJ 	detailed 	the
testimony of Ms. Bennett as follows:
Ms. Bennett reported that she interacts with the claimant two to three
times per week. 	Ms. Bennett indicated that the claimant has cognitive
problems and described instances where he has been unable to perform
simple activities such as organizing a pantry. 	She discussed episodes
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where the claimant became distracted while washing dishes and walked
away with the water still running. 	Ms. Bennett also recounted an episode
where the claimant got lost and a history of losing about 10 mobile
phones. 	Ms. Bennett further indicated that the claimant struggles to
remember to take his medications.
[AR 434] The ALJ does not appear to question this testimony11 yet fails to analyze how
this testimony does or does not support a conclusion that Plaintiff has only a minimal
capacity to adapt to changes in his environment or to demands that are not already part
of his daily life. 	Similarly, the ALJ acknowledged that Plaintiff’s “records confirm a long
history of mental health impairments, including a remote (2001) history of hospital
admission for psychosis” [AR 435] but does not explain why such records and periods
of decompensation do not support a conclusion that Plaintiff has only a minimal capacity
to adapt to changes in his environment or to demands that are not already part of his
daily life. The closest the ALJ comes to an explanation is her statements that Plaintiff’s
conditions 	“appear[] 	to 	improve 	when 	properly 	medicated” 	[AR 	436-37] 	and 	“the
evidence show[s] benign mental status findings when [Plaintiff] has been in a stable
situation and properly medicated” [AR 438], but these statements still fail to account for
(or otherwise address) Ms. Bennett’s testimony that Plaintiff struggles to take such
medications because he cannot recall the days of the week or whether he had taken his
medications for the day [AR 468] and the fact that Plaintiff was homeless (and thus not
in a stable situation) at the time of the hearing [AR 458].
In Gonzalez v. Commissioner of Social Security, the court found the ALJ’s
conclusory statement, that “[t]here [wa]s no medical evidence or testimony” that plaintiff
11 The ALJ states that “the claimant’s statements concerning the intensity persistence
and limiting effects of these symptoms are not entirely consistent with the [record],” but
does not appear to question in any way Ms. Bennett’s testimony. 	[AR 434 (emphasis
added)]
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satisfied Paragraph C, to be inadequate. 	No. 16 Civ. 8445 (KMK) (PED), 2017 WL
7310391 (S.D.N.Y. Dec. 21, 2017), at *10 (citation omitted), report and recommendation
adopted, 2018 WL 671261 (S.D.N.Y. Jan. 31, 2018). 	The court explained that the ALJ
had ignored evidence of the plaintiff suffering repeated episodes of decompensation,
“including withdrawal [fr]om situations, poor decision making, inability to appropriately
accept supervision, . . . deterioration from previous levels of functioning, . . . and inability
to 	adapt 	to 	changing 	demands 	of 	context.” 	Id. 	“While 	this 	evidence 	d[id] 	not
conclusively demonstrate” that plaintiff met Paragraph C, it was “unclear [fr]om the face
of the decision whether the ALJ even considered” that evidence, and thus the court held
that the ALJ had not “offered a meaningful analysis of the Paragraph C criteria.” 	Id. at
*11.
As in Gonzalez, it is possible that the evidence supports the ALJ’s conclusion
that Plaintiff cannot satisfy the Paragraph C criteria. 	But “this [C]ourt will not undertake
a post hoc effort to justify the ALJ’s conclusions. To do so would ‘overstep [the Court’s]
institutional role and usurp essential functions committed in the first instance to the
administrative process.’” 	O’dell v. Colvin, No. 1:15-cv-00628-CBS, 2016 WL 5395247,
at *5 (D. Colo. Sept. 27, 2016) (quoting Robinson v. Barnhart, 366 F.3d 1078, 1084-85
(10th Cir. 2004))). 	Accordingly, the Court is unable to determine whether the ALJ’s
Paragraph C conclusion is supported by substantial evidence, which is reversible error.
See Lawrence v. Colvin, No. 14-cv-00812-KMT, 2015 WL 5579432, at *4-5 (D. Colo.
Sept. 23, 2015).
B. 	Plaintiff’s Request for Remand with an Immediate Award of Benefits
Plaintiff 	requests 	that 	the 	case 	be 	remanded 	to 	the 	Commissioner 	for 	an
immediate award of benefits. 	[#11 at 19] 	“Outright reversal and remand for immediate
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award of benefits is appropriate when additional fact finding would serve no useful
purpose.” 	Sorenson v. Bowen, 888 F.2d 706, 713 (10th Cir. 1989) (quotation omitted).
Where, as here, “the record on appeal is unclear as to whether the ALJ applied the
appropriate standard by considering all the evidence before [her], the proper remedy is
reversal and remand.” Baker v. Bowen, 886 F.2d 289, 291 (10th Cir. 1989). The Court
thus declines Plaintiff’s request to remand with an instruction for an immediate award of
benefits.
IV. 	CONCLUSION
Accordingly, 	for 	the 	foregoing 	reasons, 	the 	Court 	REVERSES 	the
Commissioner’s decision that Plaintiff was not under a disability within the meaning of
the SSA from January 1, 2014 through November 6, 2023 and REMANDS this matter to
the Commissioner for rehearing and reconsideration consistent with this Order.
DATED: April 16, 2025 	BY THE COURT:
s/Scott T. Varholak
Chief United States Magistrate Judge
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