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Rowe v. Berryhill

United States District Court, D. Colorado

July 6, 2017

BRYENT LIONEL ROWE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM OPINION AND ORDER

          Craig B. Shaffer, United States Magistrate Judge.

         Magistrate Judge Craig B. Shaffer This action comes before the court pursuant to Title II of the Social Security Act (“Act”), 42 U.S.C. § 405(g), for review of the Commissioner of Social Security (the “Commissioner” or “Defendant”)'s final decision denying Bryent Lionel Rowe's (“Plaintiff”) application for Disability Insurance Benefits (“DIB”).[2] Plaintiff filed the Complaint on June 20, 2016 (doc. 1), and the case was assigned to District Judge Robert E. Blackburn. On August 29, 2016, the parties consented to magistrate jurisdiction pursuant to 28 U.S.C. § 626. Doc. 12. On November 4, 2016, the case was reassigned to this Magistrate Judge. Doc. 19. The court has carefully considered the Complaint, Plaintiff's Opening Brief (filed September 29, 2016) (doc. 14), Defendant's Response Brief (filed October 20, 2016) (doc. 17), Plaintiff's Reply (filed November 4, 2016) (doc. 18), the entire case file, the Social Security administrative record (“AR, ” doc. 10), and the applicable law. Oral argument would not assist the court. For the following reasons, the court reverses and remands the Commissioner's decision.

         SOCIAL SECURITY LAW AND STANDARD OF REVIEW

         To be entitled to DIB, the claimant must be disabled.

A person is disabled within the meaning of the Social Security Act only if his physical and/or mental impairments preclude him from performing both his previous work and any other “substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social Security [Act] requires the [Commissioner] to consider the combined effects of the impairments in making a disability determination.” …. However, the mere existence of a severe impairment or combination of impairments does not require a finding that an individual is disabled within the meaning of the Social Security Act. To be disabling, the claimant's condition must be so functionally limiting as to preclude any substantial gainful activity for at least twelve consecutive months.

Wilson v. Astrue, No. 10-cv-00675-REB, 2011 WL 97234, at *1 (D. Colo. Jan. 12, 2011) (quoting Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987)).

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

1. The ALJ [(administrative law judge)] 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 [“RFC”].

Wilson, 2011 WL 97234, at *2 (citing 20 C.F.R. § 404.1520(b)-(f); 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 RFC. 20 C.F.R. § 404.1520(e). The claimant has the burden of proof in steps one through four. The Commissioner bears the burden of proof at step five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

         In reviewing the Commissioner's final decision,

[o]ur review is limited to determining whether the Commissioner applied the correct legal standards and whether the agency's factual findings are supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It is more than a scintilla, but less than a preponderance.

Lee v. Berryhill, No. 16-5163, ___ F. App'x ___, 2017 WL 2297392, at *1 (10th Cir. May 25, 2017) (internal quotation marks and citations omitted, citing inter alia Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175 (10th Cir. 2014)). See also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive”).

         Accordingly, the court may not reverse an ALJ because the court may have reached a different result based on the record; the question is instead whether there is substantial evidence showing that the ALJ was justified in his or her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). “We review only the sufficiency of the evidence, not its weight .... Although the evidence may also have supported contrary findings, we may not displace the agency's choice between two fairly conflicting views.” Lee, 2017 WL 2297392, at *2. Nevertheless, “[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). In addition, “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).

         BACKGROUND

         On June 6, 2013, through his attorney, Plaintiff applied for DIB under Title II of the Social Security Act. AR at 233 (disability report June 12, 2013). From October 1998 until at least February 2013, Plaintiff was an equipment operator specialist at the Denver International Airport. Id. at 239. After an extended absence from work due to a knee injury, Plaintiff underwent a medical evaluation and obtained a medical waiver to maintain his commercial driver license (“CDL”) despite taking insulin. See, e.g., Id. at 246. Although the waiver sufficed for purposes of maintaining his CDL, Denver International Airport was “not accepting medical waivers.” Id. After an unsuccessful attempt to identify another job to reassign Plaintiff, ...


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