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Lapp v. Colvin

United States District Court, D. Colorado

September 3, 2014

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


CRAIG B. SHAFFER, Magistrate Judge.

This civil action comes before the court pursuant to Title XVI of the Social Security Act (the "Act"), 42 U.S.C. §§ 1381-1383f, for review of the Commissioner of Social Security's final decision denying Plaintiff, Ms. Lapp's, application for Supplemental Security Income benefits ("SSI"). Pursuant to the Order of Reference dated March 6, 2014, this civil action was referred to the Magistrate Judge "for all purposes" pursuant to the Pilot Program to Implement the Direct Assignment of Civil Cases to Full Time Magistrate Judges and Title 28 U.S.C. § 636(c). ( See Doc. # 28). The court has reviewed the Complaint (filed August 13, 2013) (Doc. # 1), Defendant's Answer (filed October 22, 2013) (Doc. # 14), Plaintiff's Opening Brief (filed December 23, 2013) (Doc. # 19), Defendant's Response Brief (filed January 1, 2014) (Doc. # 20), Plaintiff's Reply Brief (filed February 4, 2014) (Doc. # 21), the entire case file, the administrative record, and the applicable law and is sufficiently advised in the premises.

I. Procedural History

Ms. Lapp filed an application for SSI under Title XVI of the Act on March 30, 2010. ( See Complaint (Doc. # 1) at 2 of 9).[1] She alleged that she became disabled on September 4, 2001. ( See id.; Record (Doc. # 15-6 at 8 of 44)).[2] She claimed disability based on depression, PTSD, anxiety, memory, right shoulder/arm nerve damage, avascular necrosis-right hip, pain, brain tumor and breast cancer. ( See Doc. # 1-1 at 2 of 5). The claim was denied at the initial determination stage on September 17, 2010 and Ms. Lapp requested a hearing. ( See Exhibits A, B to Complaint (Docs. # 1-1, # 1-2)). Administrative Law Judge George W. Merchant ("ALJ") held a hearing on November 3, 2011. ( See Transcript (Doc. # 15-2 at 29-60 of 88)). Ms. Lapp was represented by counsel and testified at the hearing. ( See id.; Appointment of Represent-ative, Record (Doc. # 15-4) at 5 of 64). Mr. Kenneth A. Lister testified at the hearing as a vocational expert ("VE"). ( See id. ). The ALJ issued his written decision on November 15, 2011, concluding that Ms. Lapp had no past relevant work and was not disabled under the Act because based on her "age, education, work experience, and residual functional capacity, " she "is capable of making a successful adjustment to other work that exists in significant numbers in the national economy." ( See Exhibit C to Complaint (Doc. # 1-3) at 14 of 18).

On January 4, 2012, Ms. Lapp requested review of the ALJ's decision. ( See Exhibit D to Complaint (Doc. # 1-4)). The Appeals Council denied Ms. Lapp's request for review on June 14, 2013. ( See Exhibit E to Complaint (Doc. # 1-5)). The decision of the ALJ then became the final decision of the Commissioner. 20 C.F.R. § 416.1481; Neilson v. Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993) (citation omitted). Ms. Lapp filed this action on August 13, 2013. The court has jurisdiction to review the final decision of the Commissioner. 42 U.S.C. § 405(g).

II. Standard of Review

In reviewing the Commissioner's final decision, the court must "closely examine the record as a whole to determine whether the... decision is supported by substantial evidence and adheres to applicable legal standards." Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (internal quotation marks and citation omitted). See also Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (court "must determine whether the... decision of nondisability, ... is supported by substantial evidence, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion") (internal quotation marks and citation omitted). The court "must affirm... if the decision is supported by substantial evidence." Eggleston v. Bowen, 851 F.2d 1244, 1246 (10th Cir. 1988) (citing 42 U.S.C. § 405(g)). "A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it." Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir.1988). The court "may neither reweigh the evidence nor substitute [its] judgment for the [Commissioner's]." White v. Massanari, 271 F.3d 1256, 1260 (10th Cir. 2001). See also Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) ("The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.") (internal quotation marks and citation omitted); Mounts v. Astrue, No. 11-1172, 479 F.Appx. 860, 867 (10th Cir. May 9, 2012) (court cannot reweigh the evidence and come to a different conclusion than the ALJ) (citation omitted).

III. Ms. Lapp's Challenge to ALJ's Decision

An individual's eligibility for SSI payments shall be determined on the basis of the individual's income, resources, and other relevant characteristics. 42 U.S.C. § 1382(c)(1). In addition to being financially eligible, the individual must file an application for SSI and be under a "disability" as defined in the Act. 42 U.S.C. § 1382. An individual "shall be determined to be under a disability only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B).

The Commissioner has developed a five-step evaluation process for determining whether a claimant is disabled under the Act. See Williams, 844 F.2d at 750-52 (describing the five steps in detail). "If a determination can be made at any of the steps that a claimant is not disabled, evaluation under a subsequent step is not necessary." Id. at 750. At step four of the evaluation process, an ALJ must determine a claimant's Residual Functional Capacity (RFC). The RFC is what a claimant is still "functionally capable of doing on a regular and continuing basis, despite [her] impairments; the claimant's maximum sustained work capability." Williams, 844 F.2d at 751. "The claimant bears the burden of proof through step four of the analysis." Neilson, 992 F.2d at 1120.

At step five, the burden shifts to the Commissioner to show that a claimant can perform work that exists in the national economy, taking into account her RFC, age, education, and work experience. Neilson, 992 F.2d at 1120.

... A claimant's RFC to do work is what the claimant is still functionally capable of doing on a regular and continuing basis, despite his impairments: the claimant's maximum sustained work capability. The decision maker first determines the type of work, based on physical exertion (strength) requirements, that the claimant has the RFC to perform. In this context, work existing in the economy is classified as sedentary, light, medium, heavy, and very heavy. To determine the claimant's "RFC category, " the decision maker assesses a claimant's physical abilities and, consequently, takes into account the claimant's exertional limitations (i.e., limitations in meeting the strength requirements of work)....
If a conclusion of "not disabled" results, this means that a significant number of jobs exist in the national economy for which the claimant is still exertionally capable of performing. However, ... [t]he decision maker must then consider all relevant facts to determine whether the claimant's work capability is ...

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