United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Nina Y. Wang United States Magistrate Judge
This civil action comes before the court pursuant to Titles II and XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 401-33 and 1381-83(c) for review of the Acting Commissioner of Social Security’s final decision denying Plaintiff, Shannon Williams’s, application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Pursuant to the Order of Reference dated July 9, 2015 [#21], this civil action was referred to the Magistrate Judge for a decision on the merits pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and D.C.COLO.LCivR 72.2. [#42]. The court has carefully considered the Complaint filed July 17, 2014 [#1], Defendant’s Answer filed January 20, 2015 [#9], Plaintiff’s Opening Brief filed March 30, 2015 [#13], Defendant’s Response Brief filed April 22, 2015 [#16], the entire case file, the administrative record, and applicable case law. For the following reasons, I AFFIRM the Commissioner’s decision.
Plaintiff Shannon Williams (“Plaintiff” or “Ms. Williams”) filed an application for DIB under Title II of the Act and an application for SSI under Title XVI of the Act on November 30, 2011, alleging that she became disabled on August 1, 2010. See [#10-2 at 46]. These claims were initially denied on March 21, 2012, and Plaintiff requested a hearing before an administrative law judge. [#10-2 at 41, 46]. Ms. Williams appeared before Administrative Law Judge William Musseman (“ALJ”) on January 25, 2013. [#10-2 at 70-104]. The ALJ issued an unfavorable decision on February 11, 2013, finding that Ms. Williams had not been disabled from the alleged date of the onset of disability through the date of his decision. [#10-2 at 43-59]. On April 15, 2013, Plaintiff filed a “Request for Review of Hearing Decision, ” which the Appeals Council denied on May 13, 2014. [#10-2 at 2]. Ms. Williams thereafter timely filed this civil action.
In the Adult Disability Report, Ms. Williams represented that she had obtained her GED and the ALJ determined that she has “at least a high school education and is able to communicate in English.” [#10-6 at 16; #10-2 at 58]. The ALJ initially found that Plaintiff met the insured status requirements of the Act through December 31, 2015 and that she had not engaged in substantial gainful activity since August 1, 2010, the alleged onset date. [#10-2 at 48].
At the administrative hearing, at which she was represented by counsel, Plaintiff testified that she suffers from a seizure disorder, bipolar disorder, and back problems. [#10-2 at 74]. With regard to her back pain, she stated she feels stiffness in her lower back that prevents her from bending over easily, she cannot stand for long periods of time, she cannot sit for long periods of time, and she cannot sleep on her right side. [#10-2 at 74-75]. Plaintiff further stated that she has difficulty driving her car because she experiences “shooting pains in [her] lower back” and down her left leg when she stretches to depress the clutch. [#10-2 at 75]. Plaintiff testified that this sharp pain “would come and go, ” and that she “constantly had an ache in [her] back though.” [#10-2 at 76]. The shoots of pain varied from “several times a day” to “every other day, ” depending on Plaintiff’s activity. [#10-2 at 77]. Lying on her right side, driving her car, and standing to wash dishes exacerbated the pain. [Id.] Plaintiff testified that generally, standing in excess of fifteen minutes and sitting in excess of twenty-five minutes cause her significant pain. [#10-2 at 77-78]. However, Plaintiff also testified that she had received a spinal fusion on November 15, 2012 that was a success “[f]or the most part, ” but “caused a different complication at that time.” [#10-2 at 78]. Following the spinal fusion, she could sleep on her right side and stand for approximately twenty-five minutes, but could not sit for any longer than twenty-five minutes. [#10-2 at 79]. Prior to the surgery, Plaintiff was able to lift her four-year old daughter on “a good day, ” which totaled approximately three days each month. Following the surgery, she could not lift her daughter at all. [#10-2 at 80-81]. Rails are installed around Plaintiff’s commode in her home, which her daughter uses to pull herself out of the bathtub. [#10-2 at 82]. Also following the surgery, Plaintiff participated in three physical therapy sessions, received epidural steroid injections, and was taking a muscle relaxer. [#10-2 at 91]. At the time of the hearing, Plaintiff was using Vicodin, Flexeril, and Neurontin. [#10-2 at 92]. She complained that the surgery left her with significant pain in her left foot, which interferes with her ability to walk and causes her to lean on her right foot when standing. [Id.]
Plaintiff also testified that she suffers, on average, twenty-five seizures a month; one seizure may last a matter of minutes, but she has “episodes” along with the seizures which may last up to an hour and during which she may lose consciousness. [#10-2 at 83-84]. After a seizure towards the end of 2011 that left her unconscious in a parking lot, she was transported by an ambulance to Memorial North Hospital. [#10-2 at 86]. Plaintiff nonetheless continues to drive a car, though “[i]t concerns [her].” [#10-2 at 87]. She does not leave the house if she has had a seizure that day, and she has friends and a roommate whom she asks to drive her if she must leave her house. [#10-2 at 87-88]. Plaintiff has also sought treatment for bipolar disorder, which she described at the hearing as “more of a manic thing than a depressive thing, ” and which causes her to hallucinate. [#10-2 at 89]. She testified that she uses medicine to treat the disorder but could not recall the name of the medicine, and she suffers memory loss as a result of using it. [#10-2 at 93-94]. At one point, when she began to hallucinate she checked herself into a facility overnight. [#10-2 at 89-90]. Plaintiff also endured headaches that abated after she began taking Lamictal and Gabapentin. [#10-2 at 95]. Finally, Plaintiff testified that her roommate takes care of her daughter when she is in the hospital or another facility overnight. Her roommate contributes heavily to the cooking and cleaning in the home, though Plaintiff has begun to cook since the spinal fusion surgery. [#10-2 at 91].
Robert Van Iverstein testified as a vocational expert (“VE”). The ALJ first asked the VE to provide the exertional and skill level involved in Plaintiff’s previous work. The VE responded that the following jobs were commensurate with Plaintiff’s work history: dining room attendant; waitress; child care attendant; production assembly position in candy-company; ticket agent; security person for casino; and manager in fast food restaurant. [#10-2 at 99]. The ALJ then posed the following hypothetical question: would an individual of Plaintiff’s age and educational background be able to perform the forgoing jobs if she is “limited to an exertional level and a full range of sedentary, non-exertionally [sic], occasional bending, squatting, occasional leg or foot controls, no unprotected heights, no moving machinery, and no hazardous work areas.” [#10-2 at 99-100]. The VE responded in the negative on the basis that the foregoing jobs “are all light [exertion] and above.” [#10-2 at 100]. In response to the ALJ’s question whether any job would be compatible with the hypothetical worker, the VE suggested the following sedentary positions: telequotation (phonetic) clerk; surveillance systems monitor; and a credit checker or call out operator. [#10-2 at 100-101]. The ALJ then asked whether positions in the economy exist for a hypothetical worker who, “based on an inability to be attentive to task for unpredictable periods of time on an unpredictable basis on an almost daily basis, and inability, due to pain, to be at the workplace all or part of a day…25 days out of a month.” [#10-2 at 101]. The VE reported that no competitive employment is available to such a hypothetical worker. [Id.] In response to questioning by Plaintiff’s attorney, the VE stated that a person who needs to leave work early more than two times a month because of unpredicted seizure activity would likely be terminated from any job; and a person who experienced a seizure that incapacitated her for five or six minutes, two or three times a month for several months would be unable to sustain employment. [#10-2 at 102-103].
The ALJ issued his written decision on February 11, 2013, concluding that Ms. Williams has not been disabled within the meaning of the Act “from August 1, 2010 through the date of this decision.” [#10-2 at 46]. Plaintiff requested review of the ALJ’s decision and submitted new evidence, which the Appeals Council incorporated into the record: representative correspondence, with contentions, dated April 21, 2014; medical records from Peak Vista Community Health Centers, dated January 3, 2012 through January 24, 2013; medical records from Peak Vista Community Health Centers, dated February 15, 2013 through May 23, 2013; and medical records from Memorial Health System Radiology and Imaging Department, dated July 26, 2013. [#10-2 at 6; #10-6 at 65-69; #10-16 at 75-93; #10-17 at 2-37, 38]. The Appeals Council denied Plaintiff’s request on May 13, 2014. [#10-2 at 2-5]. The decision of the ALJ then became the final decision of the Commissioner. 20 C.F.R. § 404.981; Nielson v. Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993) (citation omitted). Plaintiff filed this action on July 17, 2014. The court has jurisdiction to review the final decision of the Commissioner. 42 U.S.C. § 405(g).
STANDARD OF REVIEW
In reviewing the Commissioner's final decision, the court is limited to determining whether the decision adheres to applicable legal standards and is supported by substantial evidence in the record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation omitted); Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007). The court may not reverse an ALJ simply because she 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) (internal citation omitted). Moreover, 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). However, “[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) (internal citation omitted). The 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 (internal citation omitted). 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) (internal citation omitted).
A. The ALJ’s Decision
An individual is eligible for DIB benefits under the Act if she is insured, has not attained retirement age, has filed an application for DIB, and is under a disability as defined in the Act. 42 U.S.C. § 423(a)(1). Supplemental Security Income is available to an individual who is financially eligible, files an application for SSI, and is disabled as defined in the Act. 42 U.S.C. § 1382. An individual is determined to be under a disability only if her “physical or mental impairment or impairments are of such severity that [s]he 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). The disabling impairment must last, or be expected to last, for at least 12 consecutive months. See Barnhart v. Walton, 535 U.S. 212, 214-15 (2002). Additionally, the claimant must prove she was disabled prior to her date last insured. Flaherty, 515 F.3d at 1069.
The Commissioner has developed a five-step evaluation process for determining whether a claimant is disabled under the Act. 20 C.F.R. § 404.1520(a)(4)(v). See also Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 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.” Williams, 844 F.2d at 750. Step one determines whether the claimant is engaged in substantial gainful activity; if so, disability benefits are denied. Id. Step two considers “whether the claimant has a medically severe impairment or combination of impairments, ” as governed by the Secretary’s severity regulations. Id.; see also 20 C.F.R. § 404.1520(e). If the claimant is unable to show that her impairments would have more than a minimal effect on her ability to do basic work activities, she is not eligible for disability benefits. If, however, the claimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three. Williams, 844 F.2d at 750. Step three “determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity.” Id. At step four of the evaluation process, the ALJ must determine a claimant's Residual Functional Capacity (RFC), which defines what the claimant is still “functionally capable of doing on a regular and continuing basis, despite [her] impairments: the claimant's maximum sustained work capability.” Williams, 844 F.2d at 751. The ALJ compares the RFC to the claimant’s past relevant work to determine whether the claimant can resume such work. See 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) assessing “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).
At step five, the burden shifts to the Commissioner to show that a claimant can perform work that exists in the national economy, taking into account the claimant’s RFC, age, education, and work experience. Neilson, 992 F.2d at 1120.
. . . 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 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. However, . . . [t]he decision maker must then consider all relevant facts to determine whether claimant’s work capability is further diminished in terms of jobs contraindicated by nonexertional limitations.
Nonexertional limitations may include or stem from sensory impairments; epilepsy; mental impairments, such as the inability to understand, to carry out and remember instructions, and to respond appropriately in a work setting; postural and manipulative disabilities; psychiatric disorders; chronic alcoholism; drug dependence; dizziness; and pain….
Williams, 844 F.2d at 751-52. The Commissioner can meet his or her burden by the testimony of a vocational expert. Tackett v. Apfel, 180 F.3d 1094, 1098-1099, 1101 (9th Cir. 1999).
The ALJ first determined that Ms. Williams was insured for disability through December 31, 2015. [#10-2 at 46, 48]. Next, following the five-step evaluation process, the ALJ determined that Ms. Williams: (1) had not engaged in substantial gainful activity between the alleged onset date of August 1, 2010 and her date last insured of December 31, 2015; (2) had severe impairments of “seizure disorder and disorder of the back”; and (3) did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in Title 20, Chapter III, Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). [#10-2 at 48-56]. At step four, the ALJ found that Plaintiff had an RFC to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), “except occasional bending and squatting; occasional use of foot/leg controls; no unprotected heights; no moving machinery; and no hazardous work areas.” [#10-2 at 56]. The ALJ considered Plaintiff’s age of 28 years old on the alleged disability onset date, that her education was the equivalent of at least a high school education, the fact that she had no past relevant work experience, and her RFC, and determined that jobs exist in the national economy in significant numbers that Plaintiff can perform. [#10-2 at 58-59]. Accordingly, the ALJ concluded that Plaintiff was not disabled.
First, Ms. Williams asserts the ALJ failed to develop the record regarding the functional effects of her physical and mental conditions. Second, Ms. Williams contends the ALJ’s findings regarding her physical RFC, including but not limited to her capacity to sit without considerable pain, are not supported by substantial evidence. Third, Ms. Williams argues the ALJ erred in determining her mental impairments are not severe, and in the alternative, erred in failing to consider the impairments in assessing her RFC. Finally, Ms. Williams argues the ALJ failed to consider whether her seizure disorder equaled the severity of listing 12.07 in 20 C.F.R. Part 404, Subpart P, Appendix 1, and in the alternative, erred in failing to consider the disorder in assessing her RFC. See [#13].
B. ALJ’s Development of The Record
Plaintiff argues that the ALJ failed to develop the record regarding “the functional effects of Ms. Williams’s physical and mental conditions.” [#13 at 21]. Specifically, Plaintiff asserts the ALJ failed to solicit expert opinion evidence as to how her impairments impact her ability to work in a competitive environment, and “failed in his duty to order consultative examinations to determine [her] mental and physical functional capacity to do work.” [#13 at 22-23]. Thus, Plaintiff appears to assert that the ALJ should have ordered a consultative exam as to all of her impairments.
The claimant bears the burden to prove disability in a social security case. See, e.g., Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991). However, the ALJ is responsible for ensuring “that an adequate record is developed during the disability hearing consistent with the issues raised.” Henrie v. United States Dep't of Health & Human Servs., 13 F.3d 359, 360-61 (10th Cir. 1993). “The ALJ should order a consultative exam when evidence in the record establishes the reasonable possibility of the existence of a disability and the result of the consultative exam could reasonably be expected to be of material assistance in resolving the issue of disability.” Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997). Pursuant to 20 C.F.R. § 404.1519a(b), an ALJ “may purchase a consultative examination to try to resolve an inconsistency in the evidence, or when the evidence as a whole is insufficient to allow us to make a determination or decision on your claim.” “The standard is one of reasonable good judgment.” Id. at 1168. See also Diaz v. Secretary of Health and Human Services, 898 F.2d 774, 778 (10th Cir. 1990) (holding that the ALJ did not err in failing to order a consultative examination where the claimant presented no objective evidence that he suffered from depression). For the reasons discussed below, I find that the ALJ sufficiently developed the record and did not err in failing to procure a consultative examination for Plaintiff.
1. Seizure Activity and Headaches
The ALJ began with consideration of Plaintiff’s June 21, 2010 hospital visit and found as follows. On June 21, 2010, Plaintiff was admitted to Memorial Hospital for a reported syncopal episode. Her vital signs were normal; an MRI, MRA, and MRV of her brain were negative; no seizure activity was reported during her hospitalization and an electroencephalogram (“EEG”) was negative. [#10-2 at 48; #10-10 at 19, 21, 23, 27, 34-36]. The consultation report from that visit, signed by Thomas E. Bowser, M.D., noted that Plaintiff had a panic attack at one point, “[s]he had a buzzing feeling, her eyes went black, and she apparently passed out, ” but that “[o]verall, description of these problems are more chronic tension type or stress induced headache.” [#10-10 at 20, 29]. Plaintiff was discharged on June 24, 2010. [#10-2 at 48].
On August 17, 2010, Plaintiff presented to the emergency room of Memorial Hospital reporting a history of losing consciousness, and denying seizures or any type of cardiogenic syncope. She denied any chest pain, shortness of breath, or abdominal pain, and complained only of a headache. She stated she was taking Depakote. A CT scan of her head returned as negative; and she was observed as awake, alert, and oriented. She received a couple of Norco and a dose of Dilaudid and was discharged. [#10-2 at 49; #10-10 at 41-42].
On August 18, 2010, Plaintiff returned to the emergency room reporting shaking, tremors, and difficulty speaking. Her vital signs were normal, the EEG did not show any evidence of seizure activity, and she was perceived as alert and oriented without distress. [#10-10 at 46]. She was observed as having “unusual tremors throughout the right side of her face and right arm with pill-rolling-type tremor in the right hand and some diffuse tremors throughout the rest of her body as well.” [#10-10 at 48]. The psychiatric report observed, “[i]t is difficult to tell whether this is a psychosomatic reaction or not. If it is she is an extremely good actress, but does seem when I distract her with complicated questions and tasks the tremor seems to dramatically decrease and she is possibly distractable from it.” [Id.] The physician further opined:
I think there is a good chance it could a variant of pseudoseizure. Depakote does cause tremors in some selective individuals and it could be related to Depakote. Asthenic reactions can happen with Depakote as well. I do not think it ...