United States District Court, D. Colorado
WILEY Y. DANIEL, Senior District Judge.
THIS MATTER is before the Court on review of the Commissioner's decision that denied Plaintiff's application for disability insurance benefits ["DIB"], disabled widow's benefits ["DWB"] and supplemental security income ["SSI"] under Titles II and XVI of the Social Security Act ["the Act"], 42 U.S.C. §§ 401-433. For the reasons stated below, this case is reversed and remanded to the Commissioner for further fact finding.
Plaintiff first protectively applied for DIB on February 25, 2010, claiming an onset date of May 8, 2002. (ECF No. 10, Administrative Record ["AR"] 205.) Her application was denied on July 28, 2010 ( id. 94-96), and Plaintiff failed to timely appeal this denial. On October 25, 2010, Plaintiff protectively filed her second application for DIB, as well as applications for DWB and SSI. ( Id. 157-81.) She claimed that she became disabled beginning September 15, 2004. ( Id. 164, 169, 175.) Plaintiff was 45 years old on her alleged onset date.
Plaintiff's application for SSI was denied on November 9, 2010. (AR 97-100.) Her applications for SSI and DWB were denied on February 2, 2011. ( Id. 101-07.) Plaintiff filed a Request for Hearing ( id. 208) which was held on August 12, 2011. ( Id. 115.) Plaintiff testified at the hearing that she experienced constant pain in her back, numbness and tingling in her legs, falling once or twice per week, an inability to sit for a long time, and a need to change positions. ( Id. 38-40.) She also testified that Crohn's disease caused her to be in the bathroom six to twelve times per day, and that she lost two to three pounds per week because she hardly ever ate. ( Id. 42.) She reported debilitating migraines and neck pain that radiated down her arms. ( Id. 44-46.) She said that her shoulder had been "terrible" since surgery and that she could not even wear a bra or lift her right hand over her head. ( Id. 48.) Further, she testified that she felt fatigued due to her medication and depression ( id. 42), and that medication only took the edge off of her pain. ( Id. 42-43.) She said she was very depressed and that her concentration was terrible. ( Id. 50, 51.)
On December 20, 2011, the ALJ issued an unfavorable decision denying Plaintiff's claim for benefits under the Act. ( Id. 9-31.) Specifically, in the sequential evaluation process required by law, the ALJ found at step one that Plaintiff met the insured status requirements of the Act through September 30, 2007. (AR 15.) He further found that Plaintiff engaged in substantial gainful activity between August 1, 2009, and August 31, 2009. ( Id. 15.) However, because there had been continuous 12-month periods in which Plaintiff did not engage in substantial gainful activity, the ALJ proceeded through the sequential evaluation. ( Id. 16.) Specifically, he found that Plaintiff did not engage in substantial gainful activity from September 15, 2004, her alleged date of onset in her second application, to July 31, 2009 and from September 1, 2009 to the date of the decision. ( Id. )
At step two, the ALJ found, through the date last insured, that Plaintiff had the following "severe" impairments: "Crohn's disease; degenerative disc disease; chronic obstructive pulmonary disease (COPD); and status post fall off a horse and fracture of the distal clavicle." (AR 17.) At step three, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments. ( Id. 18.)
The ALJ then addressed Plaintiff's residual functional capacity ["RFC"]. (AR 18-24.) He found that Plaintiff has the RFC to perform light work as defined in 20 C.F.R. §§ 401.1567(b) and 416.967(b) except she "is able to frequently balance and occasionally climb, stoop, kneel, crouch, and crawl." ( Id. 18.) At step four, the ALJ found that Plaintiff was capable of performing past relevant work as a retail sales clerk. (AR 25.) He thus concluded that Plaintiff "has not been under a disability, as defined in the Social Security Act, from September 15, 2004, through the date of this decision." ( Id. )
The Appeals Council denied Plaintiff's request for review (AR 1-7), making the ALJ's decision the final decision of the Commissioner.
Plaintiff argues that the ALJ's determination that she performed substantial gainful activity ["SGA"] from August 1, 2009 to August 31, 2009, is not supported by substantial evidence. Further, she argues that the ALJ erred in relying on that work to determine that Plaintiff could perform past relevant work. Plaintiff also contends that the ALJ failed to consider all of her impairments in the RFC, and that the ALJ erred in his assessment of the opinion of her treating physician's assistant ["PA"] regarding her functional abilities. Lastly, Plaintiff asserts that the ALJ erred in his determination of her subjective complaints and credibility.
A. Standard of Review
A Court's review of the determination that a claimant is not disabled is limited to determining whether the Commissioner applied the correct legal standard and whether the decision is supported by substantial evidence. Hamilton v. Sec. of Health and Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992). Substantial evidence is evidence a reasonable mind would accept as adequate to support a conclusion. Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990). "It requires more than a scintilla of evidence but less than a preponderance of the evidence." Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
"Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). "[I]f the ALJ failed to apply the correct legal test, there is a ground for reversal apart from substantial evidence." Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). However, the court "must exercise common sense' in reviewing an ALJ's decision and must not insist on technical perfection.'" Jones v. Colvin, 514 F.Appx. 813, 823 (10th Cir. 2013) (quotation omitted).
The ALJ's decision must be evaluated "based solely on the reasons given stated in the decision." Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). Thus, I will not consider post-hoc arguments of the Commissioner. ...