United States District Court, D. Colorado
LEEANN M. SHERIFF, Plaintiff,
CAROLYN W. COLVIN, Defendant.
MEMORANDUM OPINION AND ORDER
B. Shaffer United States Magistrate Judge
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.
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.
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.
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.
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.
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. 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.
then assessed the following residual functional capacity
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
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.
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.
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).
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 ...