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Rankin v. Colvin

United States District Court, D. Colorado

July 6, 2017

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



         This 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 decision.


         Ms. Rankin filed applications for DIB and SSI in February 2013. See [#10-5 at 172, 176].[2] 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].

         At the 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].

         The ALJ 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].

         Plaintiff's 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 94-95].

         The ALJ 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).


         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); 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 omitted).


         A. Ms. Rankin's Challenge to the ALJ's Decision

         An 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.

         The 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.

         At step 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 1120.

. . . 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 ...

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