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Babb v. Colvin

United States District Court, D. Colorado

August 22, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



Plaintiff Dorene Leanne Babb claims she is disabled because she has depression, a herniated disc, bulging muscles in back, and pains in her left leg. An Administrative Law Judge disagreed, finding that Plaintiff's testimony was not credible and that the testimony of numerous medical professionals supported a finding that Plaintiff's impairments were not as severe as she claimed. Plaintiff challenges this determination on four grounds, but they are all unavailing. This Court affirms the judgment of the ALJ.


Plaintiff, a forty-year-old full-time college student, filed applications for disability benefits, alleging she became unable to work as of December 2010 due to a herniated disc, bulging back muscles, and left leg pains. (AR 14, 152-61, 169-70) She further alleged that these physical limitations were exacerbated by depression. (AR 54-55, 58.) Plaintiff indisputably suffers from these physical and mental ailments: the principal question here is whether they are severe enough to be disabling.

In November 2011, the ALJ conducted a hearing into Plaintiff's allegations. At the hearing, Plaintiff provided contradictory testimony about the severity of her pain. For example, Plaintiff testified that her back pain was a 10 on a scale of one to 10 on an "okay" day, and 12 or 13 on a bad day. (AR 61) At the same time, she also testified that "some days are better than other days and I don't have any pain at all." (AR 49)

Beyond being internally inconsistent, Plaintiff's allegations of constantly enduring the severest pain are not supported by the record evidence. For example, Dr. Douglas Hess, one of Plaintiff's treating physicians, initially suggested in December 2010 that Plaintiff's physical ailments did not preclude her from all work and that with treatment she could return to her job as a cashier at Walgreens, as long as she engaged in limited amounts of lifting to prevent the return of any pain and inflammation. (AR 247-49.) One month later, in January 2011, Dr. Hess changed his position somewhat, suggesting in a number of check-the-box forms that Plaintiff should not sit or stand in one position for more than thirty minutes at a time, could not lift more than ten pounds, and might be considered for some form of disability. (AR 250, 322-23, 341.)

Dr. Hess provided further reports throughout the first half of 2011, noting generally that Plaintiff had less pain but that it increased when she was required to stand in one place for an extended period of time. He ultimately concluded that Plaintiff could not be in a job that did not require her to maintain one position for more than half an hour at a time. (AR 316-18.)

At the same time, Dr. Hess never suggested, as Plaintiff did at the hearing, that she was enduring extreme pain on "okay" days and off-the-charts pain on bad ones. Rather, Dr. Hess's largely consistent position was that Plaintiff's pain could be managed if she performed work that did not require her to do a lot of lifting or to stay in one position (sitting or standing) for an entire work day.

Dr. Hess's assessment of Plaintiff's condition is largely supported by Anthony LoGalbo, M.D., a state-agency physician, who also concluded-based on his review of Dr. Hess's reports-that Plaintiff had the physical ability to perform a range of light exertional work with limited amounts of lifting. To be sure, Dr. LoGalbo suggested that Plaintiff could perform heavier and more frequent lifting tasks and more prolonged periods in one position, but both doctors concurred in her limited ability to perform these and other tasks. (AR 85-86, 95-96.)

Plaintiff provided similarly contradictory-and unsupported-testimony about the severity of her depression. On the one hand, when prompted by her lawyer, she emphasized she had thoughts of harming herself once or twice a week as a result of depression. (AR 64.) On the other hand, she said she was not going to any counseling for her depression because she was "doing okay right now." (AR 57.) This appraisal of the diminished severity of her depression was further supported by two other medical professionals: George Scudella, M.S.W., who treated Plaintiff and reported that her depression had responded well to treatment, was in remission, and would not limit her ability to work (AR 308, 310-13); and state agency psychologist Gayle Frommelt, Ph.D., who reviewed the record as a whole and found that there was no indication of or evidence to support a finding that Plaintiff had any limitations due to psychological conditions. (AR 84, 94.)

As relevant here, the ALJ, considering this record evidence, ultimately determined that: (1) Plaintiff suffered from disc herniation, back pain, and sciatica; (2) she nevertheless had residual functional capacity to perform light work, except that she needed the ability to sit or stand during the work day; (3) her depression was non-severe; (4) her statements about the intensity and limiting effects of her pain were not credible; and (5) she could work as a cashier, salesclerk, or fast food worker and such jobs were accessible to her in sufficient numbers in the national economy, though their availability would be eroded by fifty percent because of her requirement that she be able to sit or stand at will during the work day. (AR 14-29.)

Plaintiff now raises four challenges to the reasoning that undergirds some of these conclusions reached by the ALJ.


This Court's review of the ALJ's determination is limited to determining whether the ALJ's decision is supported by substantial evidence and whether the Commissioner-through the ALJ-applied the correct legal ...

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