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Romo v. Berryhill

United States District Court, D. Colorado

September 6, 2017

DARLENE ROMO, formerly known as Darlene Sigala, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security,[1] Defendant.



         This is a Social Security benefits appeal brought under 42 U.S.C. § 405(g). Plaintiff Darlene Romo (“Romo”) challenges the final decision of Defendant, the Commissioner of Social Security (“Commissioner”), denying her application for disability insurance benefits. The denial was affirmed by an administrative law judge (“ALJ”), who ruled that Romo was not disabled within the meaning of the Social Security Act. This appeal followed.

         For the reasons set forth below, the ALJ's decision is affirmed.

         I. BACKGROUND

         Romo was born in 1965, and was 45 years old on the alleged disability onset date. (Admin. Record (“R.”) (ECF No. 10) at 107, 133.) Romo completed high school and has previously worked as a receptionist, grocery store representative, bank teller, lobby clerk, and certified nursing assistant. (R. at 121, 138).

         Romo filed an application for a closed period of disability and disability insurance benefits with a protective filing date of March 3, 2011. (R. at 133.) Romo alleges that she was disabled between May 25, 2010 through September 30, 2013 due to multiple impairments, including: cervicalgia, cervical fusions, chronic low back pain, spondylolisthesis, nerve pain, bulging disc in low back, depression, high blood pressure, and chronic pain. (R. at 136, 270.) Romo's application was initially denied and she requested a hearing, which was held on June 5, 2012. (R. at 25.) The ALJ, William Musseman, denied benefits on a finding that she was not disabled. (R. at 20.) The Social Security Appeals Council denied review, which made the ALJ's decision the final decision of the Commissioner. (R. at 1.) Romo sought judicial review, and on March 16, 2015 this Court remanded for further proceedings. (R. at 333.) A second administrative hearing was held on September 22, 2015, in front of the same ALJ, William Musseman. (R. at 286.) On October 22, 2015, the ALJ issued a written decision in accordance with the Commissioner's five-step sequential evaluation process. (R. at 270-80.)[2]

         At step one, the ALJ found that Romo had not engaged in substantial gainful activity “during the requested closed period: May 25, 2010 through September 30, 2013.” (R. at 272.)

         At step two, the ALJ found that Romo suffered from the following severe impairments: disorder of the cervical spine, disorder of the lumbar spine, and affective disorder. (R. at 273.)

         At step three, the ALJ found that Romo's impairments, while severe, did not meet or medically equal any of the “listed” impairments in the Social Security regulations. (Id.)

         Before proceeding to step four, the ALJ assessed Romo's residual functional capacity (“RFC”). The ALJ concluded that Romo has the RFC to “perform sedentary work” with the following restrictions:

[W]ith the option to alternate sitting and standing at will and the job can be performed in either position without regard to time spent in either position. The claimant could occasionally bend, squat, or kneel. She could not climb ladders or scaffolds. She could occasionally perform over chest level work, no operation of foot or leg controls. She was limited to unskilled work, characterized as SVP-2 or less.


         Next, at step four, the ALJ concluded that Romo “is unable to perform any past relevant work.” (R. at 278.) Thus, the ALJ proceeded to step five and found that there was work Romo could perform in the national and regional economy, specifically, the unskilled jobs of document preparer (SVP-2), lens block gauger (SVP-2), and call out operator (SVP-2). (R. at 279.)


         The Court reviews the Commissioner's decision to determine whether substantial evidence in the record as a whole supports the factual findings and whether the correct legal standards were applied. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. “It requires more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084. Evidence is not substantial if it is overwhelmed by other evidence in the record. Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005). In reviewing the Commissioner's decision, the Court may neither reweigh the evidence nor substitute its judgment for that of the agency. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). “On the other hand, 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).

         III. ANALYSIS

         In her appeal, Romo raises three arguments with respect to the ALJ's denial of benefits: (1) the ALJ made findings of fact regarding Romo's RFC that were not supported by substantial evidence; (2) the ALJ failed to apply the correct legal standard when evaluating the medical opinions in the record; and (3) the ALJ improperly assessed Romo's credibility. (ECF No. 13 at 4.) The Court will address each of these arguments in turn below.

         A. RFC Assessment

         Romo contends that the “ALJ's determination of [her] RFC is not supported by substantial evidence.” (Id. at 15.) Specifically, Romo asserts that the “physical limitations developed by the ALJ are not consistent with the limitations [opined upon] by either the primary treating physician, Dr. Leppard, nor the consultant examiner Dr. Cutter.” (Id.) And further, the “ALJ failed to develop the limitations resulting from [Romo's] non-physical problems, including her depression and her problems with maintaining attention and concentration.” (Id. at 5.)

         The RFC is an assessment of a claimant's capabilities in a work setting to determine “the most [she] can still do despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1). An ALJ must make specific RFC findings based on all of the relevant evidence in the case record. See Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996); SSR 96-8p, 1996 WL 374184, at *5 (July 2, 1996) (evidence considered in an RFC assessment may include the claimant's medical history, medical signs and laboratory findings, and medical source statements). The RFC analysis must explain “how the evidence ...

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