United States District Court, D. Colorado
ROBIN J. BRYAN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
B. SHAFFER, Magistrate Judge.
civil action comes before the court pursuant to Titles II and
XVI of the Social Security Act ("the Act"), 42
U.S.C. Â§Â§ 401-33 and 1381-1383c, for review of the
Commissioner of Social Security's final decision denying
Ms. Bryan's application for Supplemental Security Income
("SSI") and Social Security Disability Income
("SSDI") benefits. Pursuant to the Order of
Reference dated June 25, 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. Â§ 636(c). ( See Doc. # 22). 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
Bryan filed an application for SSDI benefits with a
protective filing date of April 2, 2012. ( See
Administrative Record ("Tr.") (Doc. # 13) at
166-167, 168-170). She filed an application for SSI benefits
on April 10, 2012. (Tr. 156-165, 171-178, 179-181). She
claimed that she became disabled on March 11, 2012. (Tr. 168,
171). Her claims were denied on August 20, 2012 and she
requested a hearing before an Administrative Law Judge
("ALJ"). (Tr. 60-61, 62-75, 76-89, 92-95, 97-100,
101). ALJ Patricia E. Hartman held a hearing on August 21,
2013. (Tr. 33-58). Ms. Bryan was represented by counsel and
testified at the hearing. (Tr. 91, 155, id. ). Ms.
Deborah Christensen testified at the hearing as a Vocational
Expert ("VE"). (Tr. 53-58, 147). The ALJ issued her
written decision on September 16, 2013, concluding that Ms.
Bryan was not disabled within the meaning of the Act. (Tr.
17-28). Ms. Bryan sought review of the ALJ's decision on
October 16, 2013. (Tr. 15-16). The Appeals Council afforded
her an extension of time, received additional evidence and on
November 5, 2014 denied her request for review. (Tr. 1-5).
Ms. Bryan filed this civil action on January 6, 2015. (
See Doc. # 1). The court has jurisdiction to review
the final decision of the Commissioner. 42 U.S.C. Â§ 405(g).
Standard of Review
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. Â§ 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. Â§ 405(g)). "A
decision is not based on substantial evidence if it is
overwhelmed by other evidence in the record or if there is a
mere scintilla of evidence supporting it." Bernal v.
Bowen, 851 F.2d 297, 299 (10th Cir.1988). 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.Appx. 860, 867 (10th Cir. May 9, 2012) (court cannot
reweigh the evidence and come to a different conclusion than
the ALJ) (citation omitted).
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. Â§ 423(d)(2)(A); Â§ 1382c(a)(3)(B). 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). "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
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.
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. Â§Â§ 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
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
Williams, 844 F.2d at 751-52. (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 v. Colvin, 2015 WL
3618281, at *1, n.1.
Bryan was 42 years old at the time she applied for disability
benefits and thus considered a "younger person." (
See 20 C.F.R. Â§ 404.1563, Tr. 31). She graduated
from high school. (Tr. 40). She is married and has two adult
children. (Tr. 39). She worked as a hotel manager,
reservation specialist, and vacation rental specialist, among
other things, until March 11, 2012. (Tr. 40-42, 246-258). The
ALJ determined that Ms. Bryan: (1) had not engaged in
substantial gainful activity since the alleged onset date of
disability, March 11, 2012, (2) had as severe impairments
"degenerative disc disease of the lumbar spine, status
post fusion at level L4-5, irritable bowel syndrome, and
headaches, " and (3) did not have an impairment or
combination of impairments that met or medically equaled the
severity of one of the listed impairments in Title 20,
Chapter III, Part 404, Subpart P, Appendix 1 (20 C.F.R. Â§Â§
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and
416.926). The ALJ determined that Ms. Bryan had the RFC to
lift and carry 20 pounds occasionally and 10 pounds
frequently, to sit, stand, and walk six hours each in an
eight-hour workday, to push and pull as much as she can lift
and carry, to occasionally climb ramps and stairs, but not
ladders or scaffolds. (Tr. 23). She also determined that Ms.
Bryan had the RFC to understand, remember, and carry out
instructions at a job with a maximum Specific Vocational
Preparation ("SVP") of four. (Tr. 23). The ALJ
found that she could not kneel or crawl or work at
unprotected heights, with dangerous unprotected machinery, or
with vibrating tools. (Tr. 23). The ALJ relied on the
testimony of the VE to reach her decision at step five that
Ms. Bryan could perform her past relevant work as a