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Abad v. Colvin

United States District Court, D. Colorado

January 5, 2017

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          William J. Martínez United States District Judge.

         This is a Social Security Benefits appeal brought under 42 U.S.C. § 405(g). Plaintiff Deserie Abad (“Abad”) challenges the final decision of Defendant, the Commissioner of Social Security (“Commissioner”), denying her application for disability insurance benefits. The denial was affirmed by an administrative law judge (“ALJ”), who ruled that Abad was not disabled within the meaning of the Social Security Act. This appeal followed.

         For the reasons set forth below, the ALJ's decision denying Abad's application for disability insurance benefits is VACATED and this case is REMANDED for further proceedings consistent with this order.

         I. BACKGROUND

         Abad was born on May 25, 1960, and was 51 years old on the alleged onset date of October 1, 2011. (Administrative Record (“R.”) (ECF No. 13) at 137.) Abad completed ninth grade and worked as a restaurant server from January 1985 until October 2011. (R. at 282.)

         Abad applied for disability insurance benefits on November 27, 2012, with a protective filing date of November 20, 2012. (R. at 244, 277.) Abad claimed that she is disabled due to the following conditions: back and chronic pain, back injury, arthritis, depression, insomnia, and learning disability. (R. at 281.) Her application was denied on June 6, 2013. (R. at 146.) Abad requested and received two hearings in front of an ALJ, Lowell Fortune. (R. at 80.) On September 25, 2014, the ALJ issued a written decision in accordance with the Commissioner's five-step sequential evaluation process. (R. at 60.)[1]

         At step one, the ALJ found that Abad had not engaged in substantial gainful activity since May 17, 2012. (R. at 26.)

         At step two, the ALJ found that Abad suffered from the following impairments: fibromyalgia, chronic pain syndrome, lumbar spine disorder, insomnia disorder, learning disorder, anxiety disorder, obesity, and cervical spine disorder. (R. at 62.) The ALJ found each of the above impairments to be medically determinable and severe. (R. at 63.) The ALJ noted that Abad's record “contains references to sleep apnea” but concluded that this condition is not medically determinable and “even if it were, it is a non-severe impairment.” (R. at 63.)

         At step three, the ALJ found that Abad's impairments, while severe, did not meet or medically equal any of the impairments listed in the Social Security regulations. (R. at 63-64.)

         Before proceeding to step four, the ALJ assessed Abad's residual functional capacity (“RFC”). The ALJ concluded that Abad has the RFC to perform “light” work as defined by the regulations, except as follows:

The claimant is able to lift 20 pounds occasionally and 10 pounds frequently. During an 8-hour workday, the claimant is able to stand and/or walk 6 hours and sit 6 hours. The claimant is unable to climb ladders, scaffolds, and ropes. The claimant is able to reach overhead frequently with the bilateral upper extremities. The claimant should avoid unprotected heights and dangerous machinery. The claimant is able to understand, remember, and carry out moderately detailed instructions. The claimant should not perform any assembly-line work (because of limitations in persistence, pace, and stress). The claimant cannot engage in work requiring intense, sustained concentration. The claimant should not perform any work above the following GED levels: reasoning, 3; math, 2; and language, 3.

         (R. at 65.)

         At step four the ALJ found that Abad was capable of performing past relevant work as a “waitress and bartender.” (R. at 73.) Therefore, the ALJ did not proceed to step five.

         Accordingly, the ALJ found that Abad was not entitled to disability insurance benefits. (R. at 74.) Abad appealed to the Social Security Appeals Council (R. at 51), which denied review (R. at 1). Abad then timely filed this action seeking review of the ALJ's September 25, 2014 decision. (ECF No. 1.)


         The Court reviews the Commissioner's decision to determine whether substantial evidence in the record as a whole supports the factual findings and whether the correct legal standards were applied. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. “It requires more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084. Evidence is not substantial if it is overwhelmed by other evidence in the record. Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005). In reviewing the Commissioner's decision, the Court may neither reweigh the evidence nor substitute its judgment for that of the agency. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). “On the other hand, if the ALJ failed to 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).

         III. ANALYSIS

         Abad argues that the ALJ erred in: (1) not calling a medical expert to opine on the issue of medical equivalence to the Listings; (2) not properly evaluating and weighing the medical opinion evidence of Abad's treating physician; and (3) not basing his credibility finding in substantial evidence. Abad also raises a fourth issue on appeal, arguing that the Appeals Council erred in failing to reverse and remand the claim to the ALJ in light of the new and material evidence with which it was presented. The Court will address each of Abad's arguments in turn.

         A. Expert Opinion on Medical Equivalence

         Abad argues that the ALJ “failed to analyze Abad's fibromyalgia as required by Social Security Ruling [‘SSR'] 12-2p” and failed to consult a state agency medical expert to opine on the issue of medical equivalence of this impairment to the Listings, pursuant to SSR 96-6p. (ECF No. 16 at 17.) Abad contends that her phy sical impairments were evaluated only by a psychologist, Gayle Frommelt, Ph.D., and that “a psychologist is not a medical doctor.” (Id. at 18.) Abad concludes that ‚Äúthere is, therefore, no assessment of medical equivalence by a medical doctor ...

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