United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. WANG, UNITED STATES MAGISTRATE JUDGE.
civil 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
the application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) by Plaintiff Tana Lynn Rankin
(“Plaintiff” or “Ms. Rankin”). This
civil action was referred to the Magistrate Judge for a
decision on the merits pursuant to the Order of Reference
dated October 12, 2016 [#17], and under 28 U.S.C. §
636(c), Fed.R.Civ.P. 73, and D.C.COLO.LCivR 72.2. The court
has carefully considered the Complaint filed May 9, 2016
[#1], Plaintiff's Opening Brief filed August 17, 2016
[#14], Defendant's Response Brief filed September 7, 2016
[#15], Plaintiff's Reply Brief filed September 21, 2016
[#16], the entire case file, the administrative record, and
applicable case law. For the following reasons, I
respectfully REVERSE and REMAND the Commissioner's
Rankin filed applications for DIB and SSI in February 2013.
See [#10-5 at 172, 176]. She alleged in the
applications that she has been disabled since December 10,
2012, at the age of twenty-eight, as a result of right optic
neuritis, multiple sclerosis (“MS”), anxiety,
mood disorder due to general medical condition, and
depression. Ms. Rankin has a high school education and worked
as a certified nurse assistant/aide (“CNA”) at
the time she became disabled. In that role, she performed
duties such as cleaning her clients' homes, managing
their laundry, and lifting, bathing, and feeding them. After
she was diagnosed with MS, she transitioned from CNA into a
companion role in which she worked with one client, keeping
her company and taking her to appointments. Plaintiff had
previously worked as a customer service agent, appointment
setter, and a teacher assistant. Administrative Law Judge
Stanley R. Hogg (“ALJ”) denied Ms. Rankin's
applications after an administrative hearing held September
10, 2014, at which Plaintiff was represented by counsel.
[#25-2 at 33-46].
administrative hearing, Plaintiff testified that she is
“very weak, ” and cannot stand, sit, or lie down
for more than a few hours at a time; her memory retention is
poor; she must urinate frequently; she experiences very bad
anxiety; and she is in constant pain due to her back,
preventing her from bending or kneeling. [#10-2 at 69]. In
response to her attorney's questions regarding these
limitations, Plaintiff testified that she was diagnosed with
MS in December 2012 and lost her CNA client two weeks after
she was diagnosed, at which point she stopped working as a
CNA. [#10-2 at 74]. At the time of diagnosis, she had lost
all vision in her right eye and was weak to the point that
she could not make up a bed. [Id. at 75]. Her memory
quickly deteriorated and she could not remember appointments.
The MS has caused the muscles in her hands to weaken and she
cannot tightly grip items, such as a pencil, for longer than
ten minutes without pain. [Id. at 81]. Plaintiff
testified that due to pain and fatigue she lies down
approximately four times a day, resulting in naps that total
approximately six hours. [Id. at 70, 75]. She does
not sleep well at night, and typically sleeps no more than
five hours. [Id. at 75]. Plaintiff testified that
she experiences sharp, intermittent pain in her lower back,
which limits the amount of weight she can lift to
approximately ten pounds. [Id. at 76]. The back pain
also prevents her from sitting in a chair for longer than two
hours at a time, after which she must stand or lie down.
[Id. at 78]. Plaintiff also testified that she can
walk one block without pain and can stand for approximately
half an hour before she must sit. [Id.] Plaintiff
frequently experiences the need to urinate, “[a]bout
every 20 to 40 minutes, ” and each bathroom break lasts
“about 10 minutes.” [Id. at 78-79].
Plaintiff testified that she experiences anxiety, for which
she takes medication, and that she is easily overwhelmed,
experiences mood swings, and will “lash out.”
[Id. at 79]. At a young age, Plaintiff was diagnosed
with a learning disorder; she testified that she continues to
have trouble reading and that simple math sometimes takes her
awhile to complete. [Id. at 80-81]. She was also
diagnosed with asthma and continues to have problems with
breathing, for which she uses an inhaler approximately twice
a week. [Id. at 82].
then prompted Plaintiff with questions about her testimony.
In response, Plaintiff stated that she drives a car and also
grocery shops approximately twice a month for “an hour
and a half to two [hours], ” with the help of her
mother or grandmother. [#10-2 at 84]. Plaintiff testified
that she had continued working as a companion, approximately
one day a week for an hour and a half, and earned between
$200 and $500 a financial quarter. [Id. at 73, 84].
She also testified that vision in her right eye had improved
although not returned entirely, and that she does not wear
glasses but normal print is “very, very, very
hard” for her to read. [Id. at 85-86].
Plaintiff correlated the pain in her lower back to activities
that involve bending, such as removing clothes from the dryer
and loading the dishwasher, but testified that she also
experiences pain when she is merely standing or sitting.
[Id. at 86]. The pain normally lasts for about
thirty minutes, and she takes meloxicam as needed. In
addition to laundry and washing dishes, Plaintiff cooks meals
and will sit down during the meal preparation so as to rest.
Plaintiff testified that she is not able to vacuum clean.
[Id. at 87]. Plaintiff and her three children, aged
three, seven, and ten years old, live with her mother and
grandmother. The two older children play sports in
recreational leagues and Plaintiff attends some of their
sporting events. [#10-2 at 88-89]. Plaintiff's mother or
grandmother will take the children to games when Plaintiff is
not able. [Id. at 90].
mother, Terry Ann Rankin, also testified. She has lived with
her daughter and grandchildren since December 2013, and spoke
to her observations of the day to day problems her daughter
faces. Terry Ann Rankin described Plaintiff as easily
frustrated, which “turns into…a lot of emotional
mobility, where she'll get very angry and lash
out.” [#10-2 at 91-92]. She testified that her daughter
appears to have a “bad day” several times a week,
and seems very fatigued on those days. [Id. at 92].
Terry Ann Rankin also testified that she noticed these
symptoms in Plaintiff prior to the MS diagnosis.
[Id. at 93]. She further testified that her daughter
looks to her with help making decisions, help caring for the
children, and help cleaning the house. [Id. at
issued his written decision on October 31, 2014, concluding
that Ms. Rankin was not disabled within the meaning of the
Act from the alleged onset date, December 10, 2012, through
the date of the written decision. [#10-2 at 61]. Plaintiff
timely requested that the Appeals Council review the
ALJ's determination. On March 14, 2016, the Appeals
Council denied Plaintiff's request for reversal or
remand. The decision of the ALJ then became the final
decision of the Commissioner. 20 C.F.R. § 404.981;
Nielson v. Sullivan, 992 F.2d 1118, 1119 (10th Cir.
1993) (citation omitted). Plaintiff filed this action on May
9, 2016. This 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);
Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir.
2007). The court may not reverse an ALJ simply because she
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 her 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, the court “may neither
reweigh the evidence nor substitute [its] judgment for that
of the agency.” White v. Massanari, 271 F.3d
1256, 1260 (10th Cir. 2001), as amended on denial of
reh'g (April 5, 2002). See also Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (“The
possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency's
findings from being supported by substantial
evidence.”) (internal quotation marks and citation
omitted). However, “[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 the
substantiality test has been met.” Flaherty,
515 F.3d at 1070 (internal citation omitted). Nevertheless,
“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) (internal citation
Ms. Rankin's Challenge to the ALJ's Decision
individual is eligible for DIB benefits under the Act if she
is insured, has not attained retirement age, has filed an
application for DIB, and is under a disability as defined in
the Act. 42 U.S.C. § 423(a)(1). Supplemental Security
Income is available to an individual who is financially
eligible, files an application for SSI, and is disabled as
defined in the Act. 42 U.S.C. § 1382. An individual is
determined to be under a disability only if her
“physical or mental impairment or impairments are of
such severity that [s]he is not only unable to do [her]
previous work but cannot, considering [her] age, education,
and work experience, engage in any other kind of substantial
gainful work which exists in the national
economy….” 42 U.S.C. § 423(d)(2)(A). The
disabling impairment must last, or be expected to last, for
at least twelve consecutive months. See Barnhart v.
Walton, 535 U.S. 212, 214-15 (2002). Additionally, the
claimant must prove she was disabled prior to her date last
insured. Flaherty, 515 F.3d at 1069.
Commissioner has developed a five-step evaluation process for
determining whether a claimant is disabled under the Act. 20
C.F.R. § 404.1520(a)(4)(v). See also Williams v.
Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (describing
the five steps in detail). “If a determination can be
made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not
necessary.” Williams, 844 F.2d at 750. Step
one determines whether the claimant is engaged in substantial
gainful activity; if so, disability benefits are denied.
Id. Step two considers “whether the claimant
has a medically severe impairment or combination of
impairments, ” as governed by the Secretary's
severity regulations. Id.; see also 20
C.F.R. § 404.1520(e). If the claimant is unable to show
that her impairments would have more than a minimal effect on
her ability to do basic work activities, she is not eligible
for disability benefits. If, however, the claimant presents
medical evidence and makes the de minimis showing of
medical severity, the decision maker proceeds to step three.
Williams, 844 F.2d at 750. Step three
“determines whether the impairment is equivalent to one
of a number of listed impairments that the Secretary
acknowledges are so severe as to preclude substantial gainful
activity, ” pursuant to 20 C.F.R. § 404.1520(d).
Id. At step four of the evaluation process, the ALJ
must determine a claimant's Residual Functional Capacity
(“RFC”), which defines what the claimant is still
“functionally capable of doing on a regular and
continuing basis, despite [her] impairments: the
claimant's maximum sustained work capability.”
Williams, 844 F.2d at 751. The ALJ compares the RFC
to the claimant's past relevant work to determine whether
the claimant can resume such work. See Barnes v.
Colvin, No. 14-1341, 2015 WL 3775669, at *2 (10th Cir.
June 18, 2015) (internal quotation marks omitted) (citing
Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir.
1996) (noting that the step-four analysis includes three
phases: (1) “evaluat[ing] a claimant's physical and
mental [RFC]”; (2) “determin[ing] the physical
and mental demands of the claimant's past relevant
work”; and (3) assessing “whether the claimant
has the ability to meet the job demands found in phase two
despite the [RFC] found in phase one.”)). “The
claimant bears the burden of proof through step four of the
analysis.” Neilson, 992 F.2d at 1120.
five, the burden shifts to the Commissioner to show that a
claimant can perform work that exists in the national
economy, taking into account the claimant's RFC, age,
education, and work experience. Neilson, 992 F.2d at
. . . A claimant's RFC to do work is what the claimant is
still functionally capable of doing on a regular and
continuing basis, despite his impairments: the claimant's
maximum sustained work capability. The decision maker first
determines the type of work, based on physical exertion
(strength) requirements, that the claimant has the RFC to
perform. In this context, work existing in the economy is
classified as sedentary, light, medium, heavy, and very
heavy. To determine the claimant's “RFC category,
” the decision maker assesses a claimant's physical
abilities and, consequently, takes into account the
claimant's exertional limitations (i.e., limitations in
meeting the strength requirements of work). . . .
If a conclusion of “not disabled” results, this
means that a significant number of jobs exist in the national
economy for which the claimant is still exertionally capable
of performing. However, . . . [t]he decision maker must then
consider all relevant facts to determine whether
claimant's work capability is further diminished in terms
of jobs contraindicated by nonexertional limitations.
Nonexertional limitations may include or stem from sensory
impairments; epilepsy; mental impairments, such as the
inability to understand, to carry out and remember
instructions, and to respond appropriately in a work setting;
postural and manipulative disabilities; psychiatric