United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge
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]. 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
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].
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].
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
• who can lift no more than ten pounds frequently;
• who can stand or walk four hours out of an eight-hour
• 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") level three;
• who can have unlimited incidental contact with the
• who cannot work in coordination with others, as on an
assembly line; and
• who cannot perform work involving sustained
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.].
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].
cross-examination, Plaintiff's attorney interposed three
(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
to the VE, all of the aforementioned positions are
nonetheless suitable for someone who fit that description.
[Id. at 165].
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.].
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.]
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. §
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).
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
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).
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
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 ...