United States District Court, D. Colorado
ROXANNE R. RYAN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.
OPINION and ORDER
MARCIA S. KRIEGER, District Judge.
THIS MATTER comes before the Court on Plaintiff Roxanne R. Ryan's appeal of the Commissioner of Social Security's final decision denying her application for Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-33, and Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83c. Having considered the pleadings and the record, the Court
FINDS and CONCLUDES that:
Ms. Ryan filed a claim for disability insurance benefits and supplemental security income pursuant to Titles II and XVI, respectively. She asserted that her disability began on January 1, 2005, but modified this date to April 30, 2005. After her claim was initially denied, Ms. Ryan filed a written request for a hearing before an Administrative Law Judge ("ALJ"). This request was granted and a hearing was held on June 11, 2009.
After the hearing, the ALJ issued a decision which found that Ms. Sutherland met the insured status requirements through December 31, 2010. The Decision also found that: (1) Ms. Ryan had not engaged in substantial gainful activity since April 30, 2005; (2) she had several severe impairments - lumbar spine degenerative disk disease, mild chronic obstructive pulmonary disease ("COPD"), tobacco abuse, major depressive disorder and anxiety with panic disorder and agoraphobia; (3) she did not have an impairment or combination of impairments that met or medically equaled any of the impairments listed in 20 C.F.R. Part 404, Subpt. P, Appx. 1 ("the Listings"); (4) Ms. Ryan had the residual functional capacity ("RFC") to perform unskilled sedentary work as defined in 20 C.F.R. § 404.1567(a) and 416.967(a), but with the following additional limitations: occasional stooping, balancing, kneeling, crouching, crawling and climbing stairs or ramps; no climbing of ladders, ropes or scaffolds; the ability to sit after standing, or standing after sitting, for brief periods of 1 to 2 minutes every hour or so during the work day; and no concentrated exposure to fumes, odors, dusts, gases, chemical irritants, environments with poor ventilation and cold temperature extremes; (5) she was unable to perform her past relevant work; and (6) she was not disabled because she was able to perform jobs that existed in significant number in the national economy, including order clerk, telephone quotation clerk and final assembler.
The Appeals Council granted Ms. Ryan's request for review of the Decision. In an order dated July 8, 2010, the Appeals Council remanded her case with the following instructions to the ALJ:
(1) Evaluate the third party lay witness (other source) statements of Ms. Lybarger (Exh. 10E/2 and 6) in accordance with 20 CFR 404.1513(d) and 416.913(d) and Social Security Ruling 06-03p.
(2) Obtain medical expert evidence in order to clarify the nature and severity of [Ms. Ryan's] alleged mental impairments per 20 C.F.R. 404.1527(f) and 416.927(f) and Social Security Ruling 96-6p, as well as to determine whether any of her medically determinable impairments meet or equal a listing (either alone, or in combination) in accordance with Appendix 1, Subpart P, Regulations No. 4 (20 C.F.R. 404.1525 and 404.1526), and if not, to determine whether any such impairments impose significant functional limitations (either alone, or in combination).
(3) Give further consideration to [Ms. Ryan's] maximum mental [RFC] during the entire period at issue and provide rationale with specific references to evidence of record in support of all assessed limitations (Social Security Ruling 96-8p). In so doing, evaluate the nonexamining source opinions of the State agency medical consultants, Drs. Bailey and Fleming (Exhs. 3F and 10F) pursuant to the provisions of 20 CFR 404.1527 and 416.927 and Social Security Ruling 96-6p, and explain the weight given to such opinion evidence.
(4) If warranted by the expanded record, obtain supplemental evidence from a vocational expert in order to clarify the effect of all assessed limitations, both exertional and nonexertional, on the claimant's occupational base (per Social Security Rulings 83-14 and 96-9p). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of such appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566 and 416.966). Further, before relying on the vocational expert evidence, the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information contained in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).
The ALJ held a second hearing on February 9, 2011, and issued a second decision. This Decision again found that (1) Ms. Ryan met the insured status requirements through December 31, 2010; (2) Ms. Ryan had not engaged in substantial gainful activity since April 30, 2005; (3) she had a number of severe impairments - chronic low back pain with left lower extremity radicular symptoms secondary to degenerative disk and joint disease in her lumbosacral spine, chronic obstructive pulmonary disease (COPD), a history of tinnitus, and dysthymic disorder with recurrent major depressive disorder and anxiety with panic attacks; and (4) none of these impairments, whether individually or in combination, met or medically equaled any of the severe impairments including in the Listings. But rather than finding that Ms. Ryan had the residual functional capacity ("RFC") to perform unskilled, sedentary work, the Decision determined that she could unskilled or low skilled, light work as defined in 20 C.F.R. § 404.1567(b) with limitations of occasionally balancing, stooping kneeling, crouching, crawling and climbing ramps or stairs; and never climbing ladders, ropes or scaffolds. With this RFC, the Decision determined that Ms. Ryan was not disabled because she was able to perform two of her past jobs, cashier II and informal waitress.
The Appeals Council denied Ms. Ryan's request for review of the second Decision. Consequently, the Decision is the Commissioner's final decision for purposes of judicial review. Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Ms. Ryan's appeal was timely brought, and this Court exercises jurisdiction to review ...