United States District Court, D. Colorado
HELEN WIXOM on behalf of Kenneth M. Wixom, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
Brooke Jackson United States District Judge
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.
STANDARD OF REVIEW
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).
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.
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
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.
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.
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.
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.
The ALJ's Decision.
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 ...