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Berumen v. Colvin

United States District Court, District of Colorado

March 11, 2015

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



Upon consent of the parties and pursuant to the Order of Reference dated August 14, 2014 (Docket No. 22), 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).

In this case, plaintiff, Magdeline B. Berumen, challenges the final decision of the Commissioner of Social Security (“Commissioner”) denying plaintiff’s application for Supplemental Security Income benefits (“SSI”) and disability insurance benefits (“DIB”) pursuant to Titles II and XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3). Plaintiff applied for SSI and DIB on February 12, 2008 (AR 432), alleging a disability onset date of April 4, 2007.[1] After a hearing before Administrative Law Judge (“ALJ”) Kathryn Burgchardt, plaintiff’s claim was denied in a written decision dated December 6, 2010 (AR 9-18). The Appeals Council (“AC”) denied plaintiff’s Request for Review. Plaintiff then commenced an action in this court (Civil Action No. 11-cv-02591-JLK), and the Commissioner voluntarily remanded the case for a new hearing before the ALJ. (Docket No. 10, Administrative Record “AR” 487). The AC thus vacated the Commissioner’s final decision and remanded the case to an ALJ for resolution of specified issues. (AR 487-89). ALJ Burgchardt then held another hearing and on March 18, 2013, issued another written decision denying plaintiff’s claim. (AR 432-43 - hereinafter “Docket No. 10-9"). The AC then found that the ALJ’s decision complied with the court’s and the AC’s remand order and that plaintiff’s exceptions provided no basis for changing the ALJ’s decision. (AR 416-17). Accordingly, the ALJ’s March 18, 2013, decision is the final decision of the Commissioner.

Plaintiff now appeals that final decision. More specifically, plaintiff raises the following arguments in support of her contention that the ALJ committed errors in rendering her decision: (1) the ALJ did not properly assess plaintiff’s physical impairments, (2) the ALJ did not properly account for the deficits in concentration that she found plaintiff to have; (3) the ALJ’s limitation to unskilled work is not supported by any evidence in the record; (4) the ALJ’s physical restrictions are not supported by any evidence in the record; and (5) the ALJ failed to account for the limitations resulting from plaintiff’s severe impairment of headaches. Several of these arguments overlap, so they will not be addressed individually.

The court has very carefully reviewed the Complaint (Docket No. 1), defendant’s Answer (Docket No. 9), plaintiff’s Opening Brief (Docket No. 13), defendant’s Response Brief (Docket No. 14), plaintiff’s Reply Brief (Docket No. 17), the entire case file, the administrative record (“AR” - Docket No. 10), and the applicable case law, statutes, and regulations. The court now being fully informed makes the following findings, conclusions of law, and Order. The court finds, substantially for the reasons stated in the defendant’s Response Brief (Docket No. 14), that the ALJ’s decision denying benefits should be affirmed. The court adopts and incorporates the Statement of the Facts section contained in the defendant’s Response Brief.


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 standards. See 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. It requires more than a scintilla, but less than a preponderance.” Id. (quoting 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 record and the arguments of counsel, the court does not reexamine the issues de novo, Sisco v. United States Dep’t of Health & Human Servs., 10 F.3d 739, 741 (10th Cir. 1993), nor does it re-weigh the evidence or substitute its judgment for that of the Commissioner, Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). Thus, even when some evidence may have supported contrary findings, the court “may not displace the agency’s choice between two fairly conflicting views, ” even if the court may have “made a different choice had the matter been before it de novo.” Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10th Cir. 2007). This court has applied this standard to each of the challenges raised by plaintiff in this appeal.

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 sequential evaluation process for determining whether a claimant is disabled under the Act. See Williams v. Bowen, 844 F.2d 748, 750-52 (10thCir. 1988) (describing the five steps in detail). “If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.” Id. at 750. “The claimant bears the burden of proof through step four of the analysis.” Neilson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993). At the fifth step, the burden shifts to the Commissioner to show that the claimant can perform work that exists in the national economy. Id.

Here, at step one, the ALJ determined that the plaintiff has not engaged in substantial gainful activity since April 4, 2007, the original alleged onset date.

At step two, the ALJ found that the plaintiff has the following severe impairments: fibromyalgia, asthma, migraine headaches, and anxiety. (Docket No. 10-9 at 21). The ALJ noted that these impairments are severe in combination as they cause more than minimal functional limitations. In addition, the ALJ noted that plaintiff has been treated for gastroesophageal reflux disease (“GERD”), and the evidence shows a right heel injury in 2006. Nevertheless, the ALJ further noted that plaintiff’s testing with regard to GERD was absent any significant findings, and recommendations included using Prevacid and following a high-fiber, anti-reflux diet. In addition, the heel injury resolved, and subsequent records documented no on-going difficulties attributed to that injury. Therefore, the ALJ found those two conditions to be non-severe.

Next, at step three of the sequential evaluation process, the ALJ found that the plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments contained in the Listings. In this regard, the ALJ specifically noted that she reviewed Listing 3.03 in connection with plaintiff’s asthma, but she found plaintiff’s asthma did not meet or medically equal the Listing because the evidence does not contain respiratory findings of the required severity. In addition, the ALJ noted that no specific Listing applies to plaintiff’s headaches or fibromyalgia, but the ALJ took note of the requirements of a Social Security Ruling (“SSR”) (12-2p), as well as Dr. Timms’ assessment that plaintiff had a history suggestive of fibromyalgia and Dr. Milligan’s listing fibromyalgia as a diagnosed condition. The ALJ further noted that in light of the medical records listing fibromyalgia as a condition, she considered plaintiff’s fibromyalgia in rendering her residual functional capacity (“RFC”) assessment, which incorporated both exertional and non-exertional limitations.

In addition, the ALJ found that the severity of plaintiff’s mental impairments did not meet or medically equal the criteria of Listings 12.04 or 12.06. In this regard, the ALJ noted that plaintiff has been assessed with anxiety and depression, which satisfy the “paragraph A” requirements of those Listings. She then considered the “paragraph B” criteria, which she detailed. However, she determined that the evidence here revealed at most mild limitation in activities of daily living and social functioning, moderate limitation in maintenance of concentration, persistence, and pace, and no episodes of decompensation of any duration. In particular, the ALJ noted that plaintiff had previously testified in 2010 that she resides in a house by herself and is a divorced mother of four children. Her two oldest live outside the home, and she sees them, along with her grandchild, on occasion. The youngest two reside primarily with their father but do spend two nights per week with the plaintiff. Plaintiff informed examiner Brett Valette, Ph.D., that she does light housekeeping, small loads of laundry, and drives a car. Socially she sees her children, grandchild, and other family members regularly. She also goes to the store as needed. The ALJ found that these factors support her assessed mild limitations in activities of daily living and social functioning.

With regard to the ALJ’s finding of moderate limitations of concentration, persistence, and pace, the ALJ noted that plaintiff was able to watch television, have a conversation, and go to the store and complete her shopping as needed. In addition, plaintiff’s function report indicated that she could pay attention for a “long time” and that she finished what she started, as long as she could take breaks. Furthermore, plaintiff testified that she babysits her four-year old grandchild from time to time (2010 testimony). Also, during Dr. Valette’s examination, plaintiff recalled three of three items immediately and two after a five-minute delay, could not perform serial sevens but correctly completed serial three calculations and spelled the word “world” backwards correctly. The ALJ found that these factors, in combination with plaintiff’s use of medications, support the finding that plaintiff is moderately limited in the ability to maintain concentration, persistence, and pace, which she noted is reflected in her subsequent RFC assessment. (Docket No. 10-9 at 22).

The ALJ further noted that she considered whether the “paragraph C” criteria of the above-mentioned mental Listings were satisfied but found that the evidence in this case did not establish such criteria. (Docket No. 10-9 at 23).

At step four of the evaluation process, an ALJ must determine a claimant's RFC.

. . 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 ...

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