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Barker v. Colvin

United States District Court, District of Colorado

January 6, 2015

CHERIE M. BARKER, Plaintiff,



This matter is before the Court on review of the Commissioner of Social Security’s decision to deny Plaintiff’s application for disability insurance benefits. The Plaintiff filed an Opening Brief (ECF No. 17), the Commissioner filed a Response (ECF No. 18), and Plaintiff filed a Reply (ECF No. 19). After reviewing the briefs and administrative record filed with the Court, the Commissioner’s decision denying Plaintiff’s application for Social Security disability benefits is affirmed.


Plaintiff was born in 1969. (Record (“R.”) (ECF No. 10) at 100.) Plaintiff’s medical records indicate that she has been diagnosed since 2007 with a number of medical conditions, including post-traumatic stress disorder, major depressive disorder, panic disorder with agoraphobia, dissociative disorder, polysubstance abuse in full remission, and alcohol abuse in partial remission. (Id. at 222-29, 233-50, 882-906.) Plaintiff alleges a disability onset date of November 1, 2007. (Id. at 100.) Plaintiff has past relevant work as an administrative assistant, a customer service representative, a front desk clerk, a reservation clerk, and a reservations manager. (Id. at 45.)

Plaintiff’s application for disability insurance benefits was denied on July 31, 2008 (id. at 50-52), and she requested a hearing before an administrative law judge (id. at 55-56). Administrative Law Judge William Musseman (“the ALJ”) presided over Plaintiff’s hearing on September 24, 2009. (Id. at 25-48.) Plaintiff was represented by counsel at the hearing, and Plaintiff and vocational expert Nora Dunn testified at the hearing. (Id.)

On February 2, 2010, the ALJ issued his decision (id. at 10-20), concluding that Plaintiff “was not under a disability, as defined in the Social Security Act, at any time from November 1, 2007, the alleged onset date, through September 30, 2009, the date last insured. . . .” (id. at 19). The ALJ made the following findings of fact and conclusions of law in accordance with the Commissioner’s five-step sequential evaluation process.[1] At step one, the ALJ ruled that Plaintiff had not engaged in any substantial gainful activity between November 1, 2007 and September 30, 2009. (Id. at 12.) At step two, the ALJ held that Plaintiff had the following severe impairments: anxiety, an affective disorder, and obesity. (Id. at 12-13.) At step three, the ALJ held that Plaintiff’s severe impairments do not meet or equal the established listing of impairments under the governing regulations. (Id. at 13.) The ALJ then analyzed Plaintiff’s residual functional capacity (“RFC”), concluding that Plaintiff

had the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except that she should avoid unprotected heights; should not climb ladders, ropes, or scaffolds; and should not deal with the general public, or perform tasks with a SVP of greater than 3, or with GED levels of more than 1, 2, or 3. The claimant should only occasionally interact with co-workers, and should have minimal supervision on the job.

(Id. at 13-14.) The ALJ then ruled at step four that Plaintiff was unable to perform any past relevant work. (Id. at 18.) However, considering the RFC assessment described above, along with Plaintiff’s age, education, and work experience, at step five the ALJ determined (based on the vocational expert’s testimony) that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as floor waxer, hand packer, and window cleaner. (Id. at 18-19.)

Plaintiff appealed the ALJ’s decision (id. at 99), and the Appeals Council denied her appeal (id. at 1-6). Plaintiff challenged that decision before this Court on September 16, 2011, and the Court remanded based on the ALJ’s limited analysis of the treatment and opinions expressed by Jeffery Harazin, M.D. (Id. at 982-92.) Dr. Harazin regularly treated Plaintiff from February 2006 through late 2009. (Id. at 882-99.) Plaintiff’s treatment history with Dr. Harazin overlaps with the onset of her disability through the date she was last insured. (Id. at 946.) As such, the Court urged the ALJ to more fully consider the length of Dr. Harazin’s treatment, his familiarity with Plaintiff’s condition, and his treatment records during Plaintiff’s alleged period of disability. (Id. at 990-91.)

On March 11, 2013, the ALJ held a second hearing to evaluate Plaintiff’s claim. (Id. at 952.) On April 4, 2013, the ALJ issued a second decision in accordance with the Court’s Order, in which he assigned no weight to Dr. Harazin’s opinion. (Id. at 927-46.) The ALJ consequently denied Plaintiff’s application for benefits, finding Plaintiff was not disabled between her alleged disability onset date, November 1, 2007, through the date she was last insured, December 31, 2009. (Id. at 946.) The ALJ issued his findings under the five-step evaluation process referenced above, which were consistent with his February 2, 2010 decision. (Compare id. at 10-20, with id. at 927-46.) The Plaintiff filed exceptions to the ALJ’s April 4, 2013 decision on October 3, 2013 (id. at 918), which the Appeals Council declined to consider (id. at 907). On February 27, 2014, the Plaintiff filed the instant action challenging the ALJ’s decision. (ECF No. 1.)


The Court reviews the Commissioner’s decision to determine whether substantial evidence in the record as a whole supports the factual findings and whether the correct legal standards were applied. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. “It requires more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). Evidence is not substantial if it is overwhelmed by other evidence in the record. Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005). In reviewing the Commissioner’s decision, the Court may neither reweigh the evidence nor substitute its judgment for that of the agency. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). “On the other hand, if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).


Plaintiff raises the following arguments on appeal: 1) the ALJ’s decision on remand failed to give proper weight to the opinion of treating physician Dr. Harazin; 2) the ALJ assigned improper weight to the opinion of non-treating physician, Richard Garnand, M.D.; 3) the ALJ’s conclusion regarding Plaintiff’s RFC is not supported by substantial evidence; and 4) the ALJ improperly questioned the authenticity of Dr. ...

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