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Ross v. Colvin

United States District Court, District of Colorado

March 10, 2015

BRANDI ROSS o/b/o Claudia Ross, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER

PHILIP A. BRIMMER, United States District Judge.

This matter is before the Court on plaintiff Brandi Ross’ complaint [Docket No. 1], filed on March 28, 2012. Brandi Ross, on behalf of her deceased mother Claudia Ross, seeks review of the final decision of defendant Carolyn W. Colvin (the “Commissioner”) denying Claudia Ross’ claim for a period of disability and disability insurance benefits under Title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 401-33.[1] The Court has jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 405(g).

I. BACKGROUND

On June May 18, 2005, plaintiff[2] applied for supplemental security income and disability insurance benefits under Title II of the Act. R. at 647. Plaintiff alleged that she had been disabled since January 20, 2005. Id. After an initial administrative denial of her claim, plaintiff received a hearing before an Administrative Law Judge (“ALJ”) on July 18, 2006. Id. On August 19, 2006, ALJ Peggy Sue Ball issued a decision denying plaintiff’s claim. Id. The Appeals Council granted plaintiff’s request for review, setting aside the ALJ’s decision, R. at 152, and, on June 12, 2007, a second hearing was held. R. at 599. On August 27, 2007, ALJ Ball issued an unfavorable decision. R. at 20-33. On February 13, 2009, plaintiff committed suicide. R. at 494, 572. Plaintiff’s daughter, Brandi Ross, pursued her mother’s disability insurance benefits claim as a substitute party, R. at 665, [3] and appealed the ALJ’s decision to the District Court, Ross v. Astrue, No. 08-cv-01337-PAB. On September 3, 2009, the Court reversed and remanded the case. R. at 552-53. On July 7, 2010, a hearing was held before ALJ William Musseman.[4] R. at 630. The ALJ issued an unfavorable decision. R. at 372. On November 5, 2010, plaintiff appealed the ALJ’s decision to the District Court, Ross v. Astrue, No. 10-cv-2709-JLK. The Commissioner filed an unopposed motion to remand the case and, on May 23, 2011, the District Court issued an order remanding the case. R. at 678; No. 10-cv-2709-JLK (Docket No. 18). Pursuant to the remand order, [5] on November 14, 2011, the ALJ held a hearing. R. at 754. On January 17, 2012, the ALJ issued an unfavorable decision (the “ALJ’s decision”). R. at 647-661.

The ALJ found that plaintiff had the following severe impairments up to the date of her death: “depression, chronic myalgias of the right arm and shoulder, and fibromyalgia.” R. at 651. The ALJ concluded that these impairments, alone or in combination, did not meet one of the regulations’ listed impairments, id., and ruled that plaintiff had the residual functional capacity (“RFC”), from the alleged onset date until her death to

perform light work, as defined in 20 CFR 202.1567(b), except the claimant could perform no over chest level work with either upper extremity, and was limited to no complex tasks, as defined as involving a Specific Vocational Preparation (SVP) level of 3 or less.

R. at 652. Based upon this RFC and in reliance on the testimony of a vocational expert (“VE”), the ALJ concluded that plaintiff was unable to perform any past relevant work up to the date of her death, R. at 659, but that plaintiff was not disabled as “there were jobs that existed in significant numbers in the national economy that the claimant could have performed to the date of her death.” R. at 660.

Pursuant to 20 C.F.R. §§ 404.984(a) and 416.1484, the ALJ’s decision is the final decision of the Commissioner.

II. ANALYSIS

A. Standard of Review

Review of the Commissioner’s finding that a claimant is not disabled is limited to determining whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence in the record as a whole. See Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). The district court may not reverse an ALJ simply because the court may have reached a different result based on the record; the question instead is whether there is substantial evidence showing that the ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). “Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). Moreover, “[e]vidence 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). The district court will not “reweigh the evidence or retry the case, ” but must “meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ’s findings in order to determine if the substantiality test has been met.” Flaherty, 515 F.3d at 1070. Nevertheless, “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).

B. The Five-Step Evaluation Process

To qualify for disability benefits, a claimant must have a medically determinable physical or mental impairment expected to result in death or last for a continuous period of twelve months that prevents the claimant from performing any substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2). Furthermore,

[a]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he ...

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