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Sheriff v. Colvin

United States District Court, D. Colorado

February 10, 2017



          Craig B. Shaffer United States Magistrate Judge

         Magistrate Judge Craig B. Shaffer This action comes before the court pursuant to Titles II and XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 401-33 and 1381-83(c) for review of the Commissioner of Social Security's final decision denying Leeann M. Sheriff's (“Plaintiff”) application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Pursuant to the Order of Reference dated July 28, 2016, this civil action was referred to the Magistrate Judge “for all purposes” pursuant to D.C.Colo.LCivR 72.2 and Title 28 U.S.C. § 636(c). See Doc. 20. The court has carefully considered the Complaint (filed March 16, 2016) (Doc. 1), Plaintiff's Opening Brief (filed June 23, 2016) (Doc. 15), Defendant's Response Brief (filed July 13, 2016) (Doc. 16), Plaintiff's Reply Brief (filed July 27, 2016) (Doc. 19), the entire case file, the administrative record, and applicable case law. For the following reasons, the court affirms the Commissioner's decision.


         In June 2013, Plaintiff filed an application for disability benefits and supplemental security income, alleging a disability onset date of February 23, 2012. (See Social Security Administrative Record (hereinafter “AR”) at 32, 194). Plaintiff alleged that her ability to work was limited by post-traumatic stress disorder, obsessive compulsive disorder, anxiety, depression, closed head injury, migraines, difficulty reading, difficulty understanding basic concepts, dyslexia, asthma, and fetal alcohol effects. See Id. at 263. Plaintiff was born on May 15, 1973, and was 38 years old on the date of her alleged disability onset. Id. at 41, 259. She has a high school diploma and completed two years of college coursework. Id. at 41, 264. She has worked in a variety of jobs including as a bus driver, a pharmacy technician, and a certified nurse's assistant. Id. at 284-85. After her initial application was denied, Plaintiff requested a hearing, which was held on July 29, 2014, before an Administrative Law Judge (“ALJ”). See Id. at 48-73, 103.

         Plaintiff was represented by counsel at the hearing and testified that she suffered from seizures and tics, but she stated that her grand mal seizures were being controlled with medication. Id. at 54-57. She also testified that due to her medication and twitching episodes, she was always tired and overwhelmed, which caused her to stay at home. Id. at 65. Plaintiff stated that she also had difficulty concentrating and would often “zone out, ” and that she had trouble comprehending and remembering information, reading, writing, and following instructions. Id. at 58-60. She further testified that she suffered from migraine headaches and ringing in her ears. Id. at 58. Plaintiff did state that she was able to cook, clean, and do laundry. Id. at 65.

         A vocational expert (“VE”) also testified at the hearing. Id. at 70-72. The VE testified that Plaintiff's prior work experience was classified as “semi-skilled” work that was performed at a “light” exertional level as defined by the Dictionary of Occupational Titles exertional guidelines. Id. at 70. The ALJ asked the VE to assume hypothetically that a younger individual - with the same education and past work experience as Plaintiff - had the following limitations: (1) could perform a limited range of medium work activity; (2) subject to seizure precautions, including no operating of motor vehicles, being around dangerous machinery, or working at heights; (3) capable of adequate work interactions with supervisors, the public, or coworkers on a frequent basis; and (4) limited to routine, repetitive type work of an SVP 1 or 2 complexity . Id. at 70-71.

         Based on these restrictions, the VE identified three jobs that someone with those limitations could perform and testified about the number of each position in the regional and national economy: (1) dining room attendant (391, 290 National); (2) industrial cleaner (2, 068, 460 National); and (3) office helper (83, 250 National). Id. at 71-72. The ALJ then posed a second hypothetical in which he asked the VE to assume that the individual's concentration and persistence would be frequently interrupted, meaning that she would be off task more than 20 percent of a workday. Id. at 72. The VE testified that, under these conditions, all of the previously identified jobs would be eliminated. Id.

         On September 3, 2014, the ALJ issued his decision denying benefits. Id. at 29-47. The ALJ's opinion followed the five-step process outlined in the Social Security regulations.[1] At step one, the ALJ found that Plaintiff had not engaged in substantial gainful employment since February 23, 2012. Id. at 35. At step two, the ALJ found that Plaintiff suffered from the following severe impairments: seizure disorder versus tick disorder; history of ovarian and uterine cancer, status post-resection, in current remission; history of pulmonary embolism; obesity; and anxiety disorder with post-traumatic stress syndrome. Id. At step three, the ALJ found that Plaintiff did not have an impairment that met or medically equaled a listed impairment. Id. at 36-37.

         The ALJ then assessed the following residual functional capacity (“RFC”):

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c). Specifically, she can lift and carry 50 pounds occasionally and 25 pounds frequently, and sit for 6 hours and stand and/or walk for 6 hours in an 8-hour day. The claimant has seizure precautions in that she cannot operate a motor vehicle as part of her work duties, and she cannot work around dangerous hazards or unprotected heights. The claimant has adequate social interactions and can frequently interact with others at the workplace. She maintains the concentration, persistence and pace to perform routine, repetitive work activities in jobs with an SVP of 1 or 2.

Id. at 37. In fashioning Plaintiff's RFC, the ALJ discussed much of the medical evidence in Plaintiff's medical records. The ALJ noted many of Plaintiff's medical records were inconsistent with her claims regarding the disabling nature of her impairments. Id. at 38-41. In addition, the ALJ credited the opinion of Dr. Frederick Leidal, a consultative psychological examiner, who examined Plaintiff and provided opinions regarding Plaintiff's limitations. Id. at 40. Dr. Leidal concluded that Plaintiff had an average ability to understand, remember, and carry out simple instructions. Id. The ALJ accorded little weight to the other evaluations in the record because they were not supported by the medical evidence and they appeared to be based more on the Plaintiff's subjective complaints. Id. at 41. The ALJ also found Plaintiff's statements regarding the intensity, persistence, and limiting effects of her symptoms “not credible” to the extent that they were inconsistent with the RFC. Id. at 38.

         At step four, based on the RFC set forth above, the ALJ found that Plaintiff could not perform any past relevant work. Id. at 41. At step five, the ALJ found: “[c]onsidering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.” Id. at 42. Specifically, the ALJ found that Plaintiff could work as a dining room attendant, an industrial cleaner, or an office helper. Id. Because there was a significant number of jobs that Plaintiff could perform, the ALJ found that Plaintiff did not meet the definition of “disabled” for purposes of the Social Security Act. Id. Accordingly, Plaintiff's application for disability benefits was denied.

         Following the ALJ's decision, Plaintiff requested review and submitted additional evidence. Id. at 28, 11-23. On January 16, 2016, the Appeals Council concluded that the new evidence did not affect the ALJ's decision and denied Plaintiff's request for review. Id. at 1-7. The decision of the ALJ 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 January 28, 2014. The court has jurisdiction to review the final decision of the Commissioner. 42 U.S.C. § 405(g).


         In reviewing the Commissioner's final decision, the court is limited to determining whether the decision 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) (citation omitted); Angel v. Barnhart,329 F.3d 1208, 1209 (10th Cir. 2003). The court may not reverse an ALJ simply because it may have reached a different result based on the record; the question instead is whether there is substantial evidence showing that the ALJ was justified in his decision. See Ellison v. Sullivan,929 F.2d 534, 536 (10th Cir. 1990). “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.” Flaherty v. Astrue,515 F.3d 1067, 1070 (10th Cir. 2007) (internal citation omitted). 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 ...

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