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Phillips v. Colvin

United States District Court, D. Colorado

February 4, 2016

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



This civil action comes before the court pursuant to Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401-33, for review of the Commissioner of Social Security’s final decision denying Ms. Phillips’s application for Social Security Disability Income (“SSDI”) benefits.[1]Pursuant to the Order of Reference dated July 27, 2015, 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. # 23). The court has reviewed the Complaint, Defendant’s Answer, Plaintiff’s Opening Brief, Defendant’s Response Brief, the administrative record, the entire case file, and the applicable law and is sufficiently advised in the premises.

I. Procedural History

Ms. Phillips filed an application for SSDI benefits with a protective filing date of November 10, 2011. (See Administrative Record (“Tr.”) (Doc. # 10) at 215-16, 266).[2] She claimed that she became disabled on August 31, 2008, when she was injured while working as a Certified Nursing Assistant (“CAN”) in a nursing home. (Tr. 50, 215, 234, 490). Her claim was denied on August 28, 2009 and she requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 106-120, 125). ALJ Beverly Susler Parkhurst held a hearing on December 4, 2012 and February 13, 2013. (Tr. 36-106). Ms. Phillips was represented by counsel and testified at the hearing. (Id.). At the hearing, Ms. Phillips amended the onset date of her disability to August 29, 2009. (Tr. 50). Dr. Gilberto Munoz testified at the hearing as a Medical Expert (“ME”). (Tr. 74-82, ). Ms. Jamie Massey testified at the hearing as a Vocational Expert (“VE”). (Tr. 82-92). The ALJ issued her written decision on March 1, 2013, concluding that Ms. Phillips was not disabled within the meaning of the Act. (Tr. 16-29). Counsel was appointed on April 25, 2013 and Ms. Phillips sought review of the ALJ’s decision. (Tr. 12-15). The Appeals Council granted Ms. Phillips’s request for an extension of time and on May 13, 2014 denied her request for review. (Tr. 1-6). Ms. Phillips filed this civil action through counsel on July 15, 2014. (See Doc. # 1). 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 findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). 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)). The court “may neither reweigh the evidence nor substitute [its] judgment for that of the agency.” White v. Massanari, 271 F.3d 1256, 1260 (10th Cir. 2001), as amended on denial of reh’g (April 5, 2002). 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. App’x 860, 867 (10th Cir. May 9, 2012) (court cannot reweigh the evidence and come to a different conclusion than the ALJ) (citation omitted).

III. Analysis

An 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.” 42 U.S.C. § 423(d)(2)(A). 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.” Williams, 844 F.2d at 750.

In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity since the alleged onset, whether she has severe impairments, and whether the severity of her impairments meets or equals the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Id. at 750-51. If plaintiff's impairment does not meet or equal a listed impairment, the evaluation proceeds to step four, where the Commissioner assesses a claimant's Residual Functional Capacity (RFC), 20 C.F.R. §§ 404.1520(e), 416.920(e), and the claimant must establish that he does not retain the RFC to perform his past relevant work. Pipkins v. Colvin, No. CIV-14-136-RAW-KEW, 2015 WL 3618281, at *1, n. 1 (E.D. Okla. June 9, 2015). The RFC is what a claimant is still “functionally capable of doing on a regular and continuing basis, despite his impairments; the claimant's maximum sustained work capability.” Williams, 844 F.2d at 751. At step four of the five-step analysis, “a claimant's RFC is measured against the physical and mental demands of the claimant's past relevant work to determine whether the claimant can resume such work.” Barnes v. Colvin, No. 14-1341, 2015 WL 3775669, at *2 (10th Cir. June 18, 2015) (internal quotation marks omitted) (citing Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir.1996) (noting that the step-four analysis includes three phases: (1) “evaluat[ing] a claimant's physical and mental [RFC]”; (2) “determin[ing] the physical and mental demands of the claimant's past relevant work”; and (3) ascertaining “whether the claimant has the ability to meet the job demands found in phase two despite the [RFC] found in phase one.”)).

“The claimant bears the burden of proof through step four of the analysis.” Neilson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993). If the claimant's step four burden is met, the burden shifts to the Commissioner to establish at step five the existence of a significant number of jobs in the national economy that a claimant can perform given his RFC, age, education, and work experience. Neilson, 992 F.2d at 1120.

. . . 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. . . .

Williams, 844 F.2d at 751-52. (internal quotation marks and citations omitted). The Commissioner can meet the burden of showing that there is other work in significant numbers in the national economy that claimant can perform by the testimony of a VE. Tackett v. Apfel, 180 F.3d 1094, 1098-1099, 1101 (9th Cir.1999). “Disability benefits are denied if the Commissioner shows that the impairment which precluded the performance of past relevant work does not preclude alternative work.” Pipkins, 2015 WL 3618281, at *1, n.1.

Ms. Phillips was 42 years old at the time she applied for disability benefits and thus considered a “younger individual.” See 20 C.F.R. ยง 404.1563, Tr. 89. She is married and has two adult children. (Tr. 86, 269, 279). She obtained a GED in 1985 and took some college courses. (Tr. 58, 238). She graduated from the Police Academy in 1998, obtained a cosmetology license in 1998, and completed CNA training in 2007. (Tr. 57, 88). Her past work includes cleaning and maintenance, electrician apprentice, CNA, truck driver, and security guard, among other things. (Tr. 57, 83, 85, 87, ...

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