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Thomas v. Colvin

United States District Court, D. Colorado

July 12, 2016

VICKI MICHELLE THOMAS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Nina Y. Wang United States Magistrate Judge

         This action comes before the court pursuant to Title XVI of the Social Security Act ("Act") and 42 U.S.C. §§ 1381-83(c) for review of the Commissioner of Social Security's final decision denying Vicki Michelle Thomas's ("Plaintiff" or "Ms. Thomas") application for Supplemental Security Income ("SSI"). The Order of Reference dated December 21, 2015 referred this civil action to the undersigned Magistrate Judge "for all purposes" pursuant to Title 28 U.S.C. § 636(c). See [#20].[1] The court has carefully considered the Complaint (filed March 20, 2015) [#1], Defendant's Answer (filed September 4, 2015) [#10], Plaintiff's Opening Brief (filed November 4, 2015) [#15], Defendant's Response Brief (filed December 2, 2015) [#16], Plaintiff's Reply Brief (filed December 21, 2015) [#19], the entire case file, the administrative record, and applicable case law. For the following reasons, I AFFIRM the Commissioner's decision.

         PROCEDURAL HISTORY

         On January 26, 2012, Ms. Thomas filed an application for SSI under Title XVI of the Act. [#11-5 at 235]. She has an eleventh grade education, [#11-6 at 260], and has not completed a GED. [#11-2 at 161]. Ms. Thomas worked in home healthcare from 1990 to 2007. [#11-6 at 273]. She alleges that she became disabled on July 17, 2007 at age 40. [#11-2 at 141]. Her claim was denied at the initial determination stage on June 19, 2012. [#11-3 at 181]. Ms. Thomas requested a hearing on June 26, 2012. [#11-4 at 188].

         Administrative Law Judge Lowell Fortune ("ALJ") held a hearing on June 7, 2013 at which Plaintiff was represented by counsel and testified that she could not work due to debilitating back, neck, and leg pain, which prevent her from sitting for longer than eleven consecutive minutes, walking farther than one block, and lifting more than twenty pounds. See [#11-2 at 146-51]. Ms. Thomas further attested that she suffers from depression, leading to uncontrolled outbursts of crying and unprovoked anger. [Id. at 155]. Additionally, she stated that she takes gabapentin, fentanyl, and Percocet to manage her pain; takes Prozac for depression; and uses approximately one joint of marijuana every two weeks to help her sleep. See [id. at 157-59].

         Next, Ashley Byers, a vocational expert ("VE"), testified at the hearing. [Id. at 161]. The ALJ posed a hypothetical scenario to the VE, asking whether jobs exist for a person with the following limitations:

• a person of Plaintiff's age, education, and work experience;
• who can lift no more than ten pounds frequently;
• who can stand or walk four hours out of an eight-hour day;
• who can sit over six hours in an eight-hour day;
• who cannot use ladders, scaffolds, or ropes to scale to any heights;
• who cannot work above specific vocational preparation ("SVP")[2] level three;
• who can have unlimited incidental contact with the public;
• who cannot work in coordination with others, as on an assembly line; and
• who cannot perform work involving sustained concentration.

See [id. at 162]. The VE testified that an individual with such limitations could perform light work, and although this person could not perform Plaintiff's previous work, jobs compatible with these limitations, such as a merchandise marker, collator operator, and domestic laundry worker, exist in significant numbers in the national economy. See [id.].

         The ALJ posed a second hypothetical in which he kept all of the above requirements, but added the condition that the worker could only stand for two hours in an eight-hour day. [Id.]. The VE stated that such a worker could find gainful employment in sedentary positions like microfilm document preparer, address clerk, or tube clerk. See [id. at 162-63].

         On cross-examination, Plaintiff's attorney interposed three more hypotheticals:

(1) He added to the ALJ's second hypothetical the requirement that an individual be capable only of brief superficial contact with coworkers, supervisors, and the general public.

         According to the VE, all of the aforementioned positions are nonetheless suitable for someone who fit that description. [Id. at 165].

         (2) He included an additional limitation that the individual be unable to maintain concentration for two-hour intervals. The VE testified that such a requirement would eliminate that individual from finding competitive work. [Id.].

         (3) He asked whether work exists for someone who had to change positions between sitting, standing, and walking every fifteen minutes. The VE stated that this limitation would eliminate all sedentary work. [Id.]

         After reviewing the record and hearing the above testimony, the ALJ issued his written decision on August 20, 2013, concluding that Ms. Thomas can perform light work and is not disabled. [#11-2 at 113]. Plaintiff requested a review of the ALJ's assessment, which was denied on January 20, 2015. [Id. at 1]. The ALJ's order then became the final decision of the Commissioner. 20 C.F.R. § 404.981; Nelson v. Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993) (citation omitted). Plaintiff filed this action on March 20, 2015. [#1]. This court has jurisdiction to review the Commissioner's final decision. 42 U.S.C. § 1383(c)(3).

         STANDARD OF REVIEW

         In reviewing the Commissioner's final decision, the court is limited to determining whether the order 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); Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). If the ALJ did not "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).

         If the court finds that the ALJ made his decision based on substantial evidence, the ALJ's ruling will be upheld even if he could have reached a different result based on the record. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). Conversely, if the court finds that the ALJ did not rely on substantial evidence, the ALJ's ruling will be reversed. See Allen v. Barnhardt, 357 F.3d 1140, 1145 (10th Cir. 2004). "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." Richardson v. Perales, 402 U.S. 389, 401 (1971); 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) (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).

         THE ALJ'S DECISION

         An individual is entitled to receive SSI if he or she is financially eligible, files an appropriate application, and is disabled as defined in the Act. 42 U.S.C. § 1382. The applicant "must have a medically determinable physical or mental impairment(s) of such severity that he or she is not only unable to do his or her previous work but cannot, considering his or her age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." SSR 82-62, 1982 WL 31386 (Jan. 1, 1982).

         The Commissioner has developed a five-step evaluation process for determining whether a claimant is disabled under the Act. See 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." Id. at 750. "The claimant bears the burden of proof through step four of the analysis, " but the burden shifts to the Commissioner at step five. Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993).

         At step one, the ALJ determines whether a claimant is participating in substantial gainful activity. Evaluation of Disability of Adults, 20 C.F.R. § 416.920(a)(4)(i) (2012). If the claimant is not engaging in substantial gainful employment, he or she may be disabled, and the ALJ moves on to the second step of the inquiry. If a ...


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