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Wixom v. Colvin

United States District Court, D. Colorado

November 22, 2016

HELEN WIXOM on behalf of Kenneth M. Wixom, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          R. Brooke Jackson United States District Judge

         This matter is before the Court on review of the Commissioner's decision denying deceased claimant Kenneth M. Wixom's application for Disability Insurance Benefits (“DIB”). Jurisdiction is proper under 42 U.S.C. § 405(g). For the reasons explained below, the Court AFFIRMS the Commissioner's decision.


         This appeal is based upon the administrative record and the parties' briefs. In reviewing a final decision by the Commissioner, the role of the District Court is to examine the record and determine whether it “contains substantial evidence to support the [Commissioner's] decision and whether the [Commissioner] applied the correct legal standards.” Rickets v. Apfel, 16 F.Supp.2d 1280, 1287 (D. Colo. 1998). A decision cannot be based on substantial evidence if it is “overwhelmed by other evidence in the record.” Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir.1988). Substantial evidence requires “more than a scintilla, but less than a preponderance.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Evidence is not substantial if it “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Regarding the application of the law, “reversal may be appropriate when the [Social Security Administration] Commissioner either applies an incorrect legal standard or fails to demonstrate reliance on the correct legal standards.” Springer v. Astrue, No. 11-cv-02606, 2013 WL 491923, at *5 (D. Colo. Feb. 7, 2013) (internal citation omitted).


         Mr. Wixom was born on August 24, 1964, but tragically passed away in a motor vehicle accident on March 28th, 2015. R. 28, 36. Before his death, Mr. Wixom resided in Peyton, Colorado. R. 144. He held a B.S. in engineering. R. 41. His past employment included work as a maintenance mechanic, an operations manager, and an installer in the telecommunications industry. R. 27. He had not held substantial gainful employment from 2008 until his untimely death. R. 41, 144.

         Before he passed away, Mr. Wixom had a long history of chronic pain. R. 24. His relevant medical history begins in August 2010 when Mr. Wixom reported that he had an ongoing back condition. R. 24, 206-225. Medical tests confirmed in October of 2010 that Mr. Wixom displayed signs of early degenerative disc disease, although without significant canal or foraminal stenosis. Id. Mr. Wixom subsequently received steroid injections, which allegedly improved some of his symptoms. Id. As a result, he did not subsequently receive additional care from his treating physician, Dr. Scott Ross, until May 30, 2012. Id.; R. 280. At that time, he received a radiofrequency rhizotomy. Id. He was subsequently “discharged in excellent condition.” Id.

         Mr. Wixom nevertheless reported that his pain had returned a month later. R. 278. He subsequently received additional injections to help him cope with the pain throughout the remainder of the year. See R. 270-78. The following March, Mr. Wixom reported an “intensification of his pain.” R. 269. Two months later in May of 2013 Mr. Wixom received additional injections that improved this back pain, although he soon began to report right shoulder pain radiating from his neck. R. 264-66. Imaging he would later receive revealed “severe, left-sided facet arthropathy and mild uncovertebral spurring” that resulted in “severe left-sided foraminal stenosis” in addition to other conditions. R. 24-25, 263.

         Discovery of these left-sided conditions, however, would not provide Mr. Wixom any answers about his new complaints of pain on his right side. See id. Thus, later the next month Mr. Wixom received a nerve conduction study and electromyography. See R. 259. This occurred on June 13, 2013. Id. It confirmed that Mr. Wixom did not have “a right cervical radiculopathy, plexopathy, or more diffuse large fiber peripheral neuropathy[, ]” but showed evidence of “ulnar neuropathy at the right elbow . . . [and] a mild median neuropathy at the right wrist.” R. 259. Several more tests completed the next year (after Mr. Wixom's date last insured) showed that his condition remained relatively unchanged. R. 25.

         A. Procedural History.

         On September 9, 2013 Mr. Wixom applied for disability insurance benefits, alleging disability beginning August 15, 2008, later amended to May 20, 2012. R. 122. The claim was initially denied on January 24, 2014. R. 59. Mr. Wixom then requested a hearing, which was set to be held on May 14, 2015. R. 82-88. Prior to that hearing, however, Mr. Wixom passed away on March 28, 2015. R. 120-21. Mr. Wixom's widow, Helen Wixom, subsequently became a substitute party to Mr. Wixom's claim, id., and appeared in his place at the originally-scheduled hearing, R. 34-58. That hearing was held before Administrative Law Judge (“ALJ”) Kathryn D. Burgchardt. Id. She issued a decision denying Mr. Wixom benefits on June 26, 2015. R. 17.

         Mrs. Wixom appealed that adverse decision to the Appeals Council on July 27, 2015. R. 15. Before the Appeals Council issued its ruling, Mrs. Wixom sent the Council two additional pieces of evidence: (1) an affidavit; and (2) a letter by Dr. Ross, in which he affirms the findings compiled in a March 25, 2015 medical assessment of Mr. Wixom by Dr. Thomas Higginbotham. R. 8-12. Nevertheless, on October 30, 2015 the Appeals Council rejected that additional evidence as immaterial and denied Mrs. Wixom's request for review. R. 1. Mrs. Wixom timely filed an appeal in this Court. ECF No. 1.

         B. The ALJ's Decision.

         The ALJ issued an unfavorable opinion after evaluating the evidence according to the Social Security Administration's standard five-step process. R. 17-33. First, she found that Mr. Wixom had not engaged in substantial gainful activity since his amended, alleged onset date of May 30, 2012 through his date last insured of December 31, 2013. R. 22. At step two, the ALJ found that Mr. Wixom had the following severe impairments: disorder of the lumbar spine, disorder of the cervical spine beginning on May 14, 2012, and right cubital tunnel syndrome beginning on June 13, 2013. R. 22. At step three, the ALJ found ...

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