United States District Court, D. Colorado
JAMIE L. NEWLON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION and ORDER
S. Krieger United States District Judge
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
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.
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 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
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.
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.
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.
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.
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.
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. 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
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 ...