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Milam v. Colvin

United States District Court, D. Colorado

June 6, 2017

CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1] Defendant.


          Craig B. Shaffer United States Magistrate Judge

         This action comes before the court pursuant to Titles II and XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 405(g) and 1383(c) for review of the Commissioner of Social Security (the "Commissioner" or "Defendant")'s final decision denying Bethany Anne Milam's[2]("Plaintiff) application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Plaintiff filed the Complaint on April 12, 2016, and the case was assigned to District Judge Robert E. Blackburn. Doc. 1. On June 21, 2016, the parties consented to magistrate jurisdiction pursuant to 28 U.S.C. § 626. Doc. 14. On August 29, 2016, the case was reassigned to this Magistrate Judge. Doc. 22. The court has carefully considered the Complaint, Plaintiffs Opening Brief (filed July 21, 2016) (Doc. 16), Defendant's Response Brief (filed August 11, 2016) (Doc. 17), Plaintiff s Reply (filed August 26, 2016) (Doc. No. 20), the entire case file, the Social Security administrative record (“AR”), and the applicable law. Oral argument would not assist the court. For the following reasons, the court affirms the Commissioner's decision.


         In May 2012, Plaintiff filed an application under Title II of the Social Security Act for DIB. Plaintiff claimed that her ability to work was severely limited by several physical conditions: “bul[]ged disk and thinning disk in spine, neck, ibs, impingement syndrome causing bursitis in shoulder, acid reflux disease and heartburn.” AR at 442. In January 2013, the application was denied administratively. Plaintiff requested a hearing before an administrative law judge (“ALJ”). Shortly thereafter, Plaintiff also applied for SSI. Her case was assigned to ALJ Nicholas J. Lo Burgio, who held evidentiary hearings on March 18, 2014 and August 12, 2014 in Denver, Colorado. Plaintiff was represented by counsel at the hearings. The ALJ heard the testimony of Plaintiff and a vocational expert, Ashley Bryars; at the second hearing, the ALJ also heard testimony from Dr. Robert Pelc, a forensic psychologist.

         On August 25, 2014, the ALJ issued his decision denying benefits. AR at 142-158. The ALJ's opinion followed the five-step process outlined in the Social Security regulations.[3] At step one, the ALJ found that Plaintiff had not engaged in substantial gainful employment since her alleged onset date of May 15, 2011; although Plaintiff had worked for a few months as a tax preparer in early 2012, her earnings did not rise to the level of substantial gainful employment. Id. at 145.

         At step two, the ALJ found that several of Plaintiff's conditions constituted severe impairments:

degenerative disc disease of the lumbar spine, with anterolisthesis at ¶ 5-S1, congenital spondylolisthesis at ¶ 5-S1, right shoulder impingement/bursitis, obesity, irritable bowel syndrome, mild tendinosis of the left knee, major depressive disorder, anxiety disorder-NOS, and pain disorder associated with both psychological factors and a general medical condition (20 CFR 404.1520(c) and 416.920(c)).

AR at 146. He concluded that as to Plaintiff's several other alleged physical and mental conditions, the record lacked evidence to show these conditions had more than a transient or nonsignificant effect on Plaintiff's ability to work. Id. At step three, the ALJ found that Plaintiff did not have an impairment that met or medically equaled a “listed” impairment, i.e., an impairment the Commissioner identifies in the regulations as disabling with no need for further analysis. Id. at 146-148.

         The ALJ then determined that Plaintiff had the following residual functional capacity (“RFC”):

to lift and carry 10 pounds occasionally and less than 10 pounds frequently. She can sit 30 minutes per time for a total of 6 hours in an 8-hour workday with regular breaks. She can stand or walk 15 minutes per time and she can stand or walk, in total, 2 hours in an 8-hour workday, with regular breaks. She can push and pull within her lifting and carrying capacity. She can occasionally operate foot controls bilaterally. The claimant can occasionally climb ramps or stairs, but never ladders, ropes, or scaffolds. She can never balance, stoop, kneel, or crawl, as part of her job duties. She can occasionally twist. The claimant can never reach overhead with her right dominant upper extremity. She can frequently reach in all other directions, or handle, with her right upper extremity. The claimant should never work around open, dangerous machinery, at unprotected heights, or drive a motor vehicle as part of her job duties. The claimant has the ability to understand, remember, and carry out those kinds of work procedures and instructions that can be learned in a period of 30 days, where there is only occasional work interaction with supervisors, co-workers, or the public. The work should be performed in an environment that is essentially unchanging, and which does not involve assembly-line work.

AR at 148. In determining Plaintiff's RFC, the ALJ relied primarily on the opinions of three physicians, each of which he found consistent with the overall record:

[T]he undersigned [ g i v e s ] greatest weight to the opinions of treating physician Dr. Mark Hayman, from February 25, 2014, that the claimant can perform sedentary work (Exs. 7 F, 8F), as is reflected in the above residual functional capacity. Dr. Hayman's opinions are the most recent, and they are most consistent with the overall record. The doctor's apparent approval (the document is unsigned) of a parking privileges application because of a severely limited ability to walk (Exs. 17E, 14F/7-8) is consistent with sedentary exertion, and the doctor's opinions from February 25, 2014 (Exs. 7 F, 8F).

Id. at 149. The ALJ thus accorded the greatest weight to the opinion of Plaintiff's treating physician Dr. Hayman as “the most recent, and … most consistent with the overall record.” He also gave “substantial weight” to an earlier opinion of another of Plaintiff's treating physicians, Dr. Malinda Schlicht.

The doctor opined the claimant could not do any heavy labor, but that she could lift, push, or pull up to 15 pounds. She opined the claimant should not sit or stand for more than 30 minutes in a row without stretching. She opined the claimant should not frequently bend. The doctor opined the claimant could work 8 hours per day, and 36 to 40 hours per week. The doctor wrote, "classes are fine" as long as the claimant can stretch every 30 minutes (Ex. 10F).

Id. at 148. The ALJ further noted that Dr. Schlicht's opinion “is supported by her detailed outline of the claimant's diagnoses and treatment.” Id. at 149 (citing Ex. 10F, AR at 1156-58). Finally, the ALJ gave “some weight” to the DDS physician Dr. Susman, who opined “that the claimant can perform light exertional work with additional postural and manipulative limitations.” Id. The ALJ found all three of Drs. Hayman, Schlicht, and Susman's opinions were “generally consistent with the overall record.” Id.

         In determining Plaintiff's RFC, the ALJ also reviewed the record for the impact of Plaintiff's non-severe impairments, including obesity. Id. He reviewed the documentary evidence regarding Plaintiff's chronology, diagnoses, results of evaluations and examinations, treatments, statements of Plaintiff that her providers noted during those appointments, and her daily activities. AR at 149-152. Among other things, the ALJ pointed to inconsistencies in Plaintiff's reports to health care providers regarding the sources and timing of her pain, including the date of a car accident. Id. at 150-51. The ALJ noted records from Plaintiff's physical therapist in which the therapist described her as noncompliant with her home exercise regimen for pain. Id. at 151. The ALJ also pointed to several portions of Plaintiff's testimony regarding her daily activities (e.g., caring for her small child and going to community college part-time), symptoms and pain levels. Id. Plaintiff reported among other things using medical marijuana and prescription pain medications daily. Id. The ALJ considered Plaintiff's treatment by a pain psychologist, John Mark Disorbio, Ed.D., her diagnosis of having a pain and somatic disorder, and of having disorders of a psychological nature. Id. at 154.

         As to mental conditions that Plaintiff raised after the first hearing,

Dr. Pelc testified to his opinion, based on his review of the record, that the claimant is mildly limited in her ability to understand, remember and carry out simple instructions; moderately limited in her ability to understand remember and carry out more detailed instructions; mildly to moderately limited in her ability to interact with co-workers, supervisors, and the public; and moderately limited in her ability to respond appropriately to usual work settings, and changes in routine work. The undersigned gives substantial weight to this opinion from Dr. Pelc. His is the only specific assessment of the claimant's mental functioning in the record. It is supported by his testimony, and it is related to his specialty in psychology.

AR at 155. In short, based on the opinion testimony, documentary evidence and Plaintiff's testimony, the ALJ concluded there was insufficient evidence to demonstrate that Plaintiff's impairments rendered her totally incapable of working.

         At step four, based on Plaintiff's RFC, the ALJ found that Plaintiff could not perform any past relevant work. Id. at 156. 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.” AR at 156.

         Specifically, the ALJ relied on the VE's testimony that Plaintiff could do

the following unskilled (SVP 2), sedentary occupations, by reference to the DOT [Dictionary of Occupational Titles] with numbers of jobs in the national and regional (State of Colorado) economies:
(1) Microfilm document preparer, DOT # 249.587-019, 45, 000 (U.S.)/400 (Colo.);
(2) Address clerk, DOT # 209.587-010, 20, 000 (U.S.)/500 (Colo.);
(3) Tube clerk, DOT # 239.687-014, 4, 000 (U.S.)/200 (Colo.);
(4) Type copy examiner, DOT # 979.687-026, 8, 000 (U.S.)/300 (Colo.).

AR at 157. The ALJ found that these jobs existed in a significant number and therefore found that Plaintiff did not meet the definition of “disabled” for purposes of the Social Security Act. Id. at 158. Accordingly, Plaintiff's application was denied.

         Plaintiff requested the Appeals Council's review of the ALJ's decision. On February 23, 2016, the Appeals Council denied her request. Id. at 1-4.[4] The decision of the ALJ then became the final decision of the Commissioner. See, e.g., 42 U.S.C. § 1383(c)(3); 20 C.F.R. § 416.1481. Plaintiff timely filed this action on April 12, 2016. Doc. 1. As the “district court of the United States for the judicial district in which the plaintiff resides, ” this court has jurisdiction. 42 U.S.C.§§ 405(g), 1383(c)(3).


         The Commissioner's regulations define a five-step process for determining whether a claimant is disabled:

1. The ALJ must first ascertain whether the claimant is engaged in substantial gainful activity. A claimant who is working is not disabled regardless of the medical findings.
2. The ALJ must then determine whether the claimed impairment is “severe.” A “severe impairment” must significantly limit the claimant's physical or mental ability to do basic work activities.
3. The ALJ must then determine if the impairment meets or equals in severity certain impairments described in Appendix 1 of the regulations.
4. If the claimant's impairment does not meet or equal a listed impairment, the ALJ must determine whether the claimant can perform his past work despite any limitations.
5. If the claimant does not have the residual functional capacity to perform her past work, the ALJ must decide whether the claimant can perform any other gainful and substantial work in the economy. This determination is made on the basis of the claimant's age, education, work experience, and residual functional capacity.

Wilson v. Astrue, No. 10-cv-00675-REB, 2011 WL 97234, at *2 (D. Colo. Jan. 12, 2011) (citing 20 C.F.R. § 404.1520(b)-(f)); see also 20 C.F.R § 416.920;[5]Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988). After the third step, the ALJ is required to assess the claimant's residual functional capacity. 20 C.F.R. ยง 416.920(e). The claimant has the burden of proof in steps one through four. The ...

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