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Newlon v. Berryhill

United States District Court, D. Colorado

October 25, 2017

JAMIE L. NEWLON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION and ORDER

          Marcia S. Krieger United States District Judge

         THIS MATTER comes before the Court on Plaintiff Jamie L. Newlon's appeal of the Commissioner of Social Security's (the “Commissioner”) final decision denying her application for Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-33, and Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83c. Having considered the pleadings and the record, the Court FINDS and CONCLUDES

          I. Jurisdiction

         Ms. Newlon filed a claim for disability insurance benefits pursuant to Titles II and XVI in October 2012, asserting that her disability began in July 2012. She later amended her claim to include an October 2013 alleged disability onset. After her claim was initially denied, Ms. Stofer filed a written request for a hearing before an Administrative Law Judge (the “ALJ”). This request was granted and a hearing was initially held in July 2014. That hearing was continued and resumed to completion in November 2014.

         The ALJ issued her decision (the “Decision”) on February 27, 2015. The ALJ first found that Ms. Newlon met the insured status requirements through September 30, 2017. Applying the five-step social security disability claim evaluation process, the ALJ next found that: (1) Ms. Newlon had not engaged in substantial gainful activity since October 1, 2013; (2) she had the severe impairments of degenerative joint disease in the left foot, status-post remote Lisfranc's injury, mild intermittent asthma, morbid obesity, moderate conductive hearing loss, borderline intellectual functioning, bipolar I disorder, panic disorder with agoraphobia, social phobia, and generalized anxiety disorder; (3) she did not have an impairment or combination of impairments that met or medically equaled any of the impairments listed in 20 C.F.R. Part 404, Subpt. P, App'x 1; and (4) Ms. Newlon had the residual functional capacity (“RFC”) to perform a range of light exertional work as set forth in 20 C.F.R. §§ 404.1567 and 416.967[1] with the additional limitations that she cannot drive and she should not work in a team environment. Given that RFC determination, the Decision found at the “Step 4” stage of the analysis that Ms. Stofer could perform a number of jobs that she had previously performed, including assembler, cleaner and merchandise marker. Based on this conclusion, the ALJ determined that Ms. Newlon was not and had not been under a disability and denied her claim.

         The Appeals Council denied Ms. Newlon's request for review of the Decision. Consequently, the Decision is the Commissioner's final decision for purposes of judicial review. Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Ms. Newlon's appeal was timely brought, and this Court exercises jurisdiction to review the Commissioner of Social Security's final decision pursuant to 42 U.S.C. § 405(g).

         II. Issue Presented

         Ms. Newlon raises a single principal objection to the ALJ's Decision. She contends that the ALJ erred when she found that Ms. Newlon failed to meet the “intellectual disability” listing set forth in 20 C.F.R. Ch. III, Part 404, Subpart P, App'x 1, § 12.05C, and therefore she is disabled.

         III. Material Facts

         The relevant and material facts are as follows. Because the sole issue being appealed by Ms. Newlon is the narrow one, the Court focuses on those facts that are relevant to it. Additional relevant facts are set forth in the legal discussion below as are necessary.

         Ms. Newlon was born in 1982. She has an eleventh grade education, and despite multiple efforts, never earned a GED. The evidence in the record pertinent to participation in special education is a school health record from an Aurora public school that indicates that she was in special education. Ms. Newlon's hearing testimony also was that she was in special education while in school. The only academic transcript in the record is from Ms. Newlon's freshman year; it reflects a 0.93 grade point average. At the hearing Ms. Newlon testified that she reads at a third-grade level and has difficulty with simple math. She can perform simple addition but not subtraction, and she cannot make change without electronic assistance.

         In June 2010, in connection with a prior social security disability claim, Ms. Newlon was evaluated by a state agency disability determination service as having a Full Scale IQ of 68, which is in the borderline intellectual functioning range. The psychologist performing the evaluation specifically noted that she believed that Ms. Newlon gave good effort on the evaluation and that the score was valid.

         Ms. Newlon worked more than thirty jobs from 1997 through 2012. Most were low-level food service and preparation jobs, temporary staffing agency jobs, and house or apartment cleaning jobs. Few if any of them appear to have lasted more than several weeks to a few months. Her earnings at virtually all of them were sparse at best.[2] Ms. Newlon testified that she had significant trouble at many of her jobs because she worked very slowly and could not perform tasks as quickly as her co-workers; she also indicated that she could not handle criticism well and frequently would need to take extended breaks to gather herself if she was criticized or reprimanded.

         Ms. Newlon also worked for several nursing facilities over the 1997 to 2012 time period; there is some dispute as to what she did at each of them, but it appears uncontroverted that she received training and worked as a certified nurse assistant (a “CNA”) at one facility, though only on a very limited and/or short term basis at that facility. Indeed, the sole nursing home job ...


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