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Howard v. Berryhill

United States District Court, D. Colorado

November 17, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.


          R. Brooke Jackson United States District Judge.

         This matter is before the Court on review of the Social Security Administration Commissioner's partial denial of claimant Laura Lee Howard's application for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act. Jurisdiction is proper under 42 U.S.C. § 405(g). For the reasons explained below, the Court REVERSES and REMANDS the decision for further consideration.


         This appeal is based upon the administrative record and the parties' briefs. In reviewing a final decision by the Commissioner, the District Court examines the record and determines whether it contains substantial evidence to support the Commissioner's decision and whether the Commissioner applied the correct legal standards. Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996). A decision is not based on substantial evidence if it is “overwhelmed by other evidence in the record.” Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988). Evidence is not substantial if it “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Reversal may also be appropriate if the Commissioner applies an incorrect legal standard or fails to demonstrate that the correct legal standards have been followed. Winfrey, 92 F.3d at 1019.


         1. Medical Background.

         Ms. Howard is 57 years old and lives in Fountain, Colorado. R. 145, 490. After receiving two years of college education, Ms. Howard worked as a veterinary technician at an equine veterinary hospital from 1999 until 2005. R. 174. From 2005 until her alleged disability onset date of July 5, 2011, Ms. Howard worked as a part-time bookkeeper at her ex-husband's legal process server business. R. 179. She described the bookkeeping job as one that was “tailor-made” for her because she was permitted to work from home on days when she felt too unwell to go into the office. R. 37. Ms. Howard stated that this job ended in 2011 when her ex-husband terminated her as a result of their divorce. R. 37. She has not sought employment since 2011 and states that this is because her health impairments limit her ability to work. Id.

         Ms. Howard claims that she suffers from the following ailments: degenerative disc disease of the cervical and lumbar spines; degenerative joint disease of the right hip; chronic pain syndrome (neck, shoulders, back, and back of legs); hypertension; carpal tunnel syndrome; left adrenal adenoma; left hip degenerative changes; allergies; arthritis; and chronic recurring headaches. R. 173, 327. She has undergone several surgeries to treat some of these issues. In 2010, Ms. Howard had bunion removal surgery on her right foot. R. 297. In December 2010 and January 2011 Ms. Howard underwent carpal tunnel release surgeries on both hands. R. 327. And in November 2015 Ms. Howard underwent a right hip replacement surgery. R. 332.

         Ms. Howard claims that her ailments make it difficult to do “everyday things” such as getting dressed, using the restroom, and getting into cars. R. 48-49. She claims that she cannot sit or stand for periods of longer than twenty minutes without the pain becoming so bad in her back and legs that she has to change positions. R. 398. In addition, she claims that her pain and/or medications cause “brain fog, ” which she describes as including short-term memory issues and an inability to concentrate. R. 393-95.

         2. Procedural History.

         Ms. Howard applied for disability insurance benefits and supplemental security income benefits on July 3, 2012. R. 145-58. After her applications were administratively denied on November 15, 2012, Ms. Howard requested a hearing before an administrative law judge (“ALJ”). R. 72-77, 78-79. On October 16, 2013 a hearing was held before ALJ Debra Boudreau in Colorado Springs, Colorado. R. 31-57. The ALJ issued a decision denying benefits on October 24, 2013. R. 15-27. Ms. Howard timely appealed the decision to the Appeals Council, which denied review on January 27, 2015. R. 1-6, 13-14. However, in response to the Commissioner's voluntary request for a reversal of the Social Security Commission's November 2012 decision, on September 2, 2015 the United States District Court reversed and remanded Ms. Howard's claims for further proceedings. R. 436-42. The Appeals Council issued an order with remand instructions to the ALJ on October 6, 2015. R. 443-48.

         On April 12, 2016, in accordance with the remand order, a second hearing was held before the ALJ. R. 383-416. During this hearing, medical expert Dr. Arthur Lorber noted that he had not received two of the exhibits prior to the hearing and therefore could not make a finding at that time. R. 412. As a result, the ALJ scheduled a supplemental hearing to ensure that Dr. Lorber had adequate time to review all of the exhibits; this hearing was held on August 25, 2016. R. 342-382, 415. During the supplemental hearing, the ALJ expressed her concerns about the credibility of treating physician Dr. Sheldon Ravin's opinions about Ms. Howard's claim.[1] After raising these concerns, the ALJ kept the case open to give Ms. Howard the opportunity to submit additional exhibits in which Dr. Ravin could clarify his opinions. R. 371- 72, 380.

         On November 21, 2016 the ALJ issued a partially favorable decision, finding that Ms. Howard was disabled and entitled to benefits for only a portion of the period in which Mr. Howard claimed disability. R. 319-41. Ms. Howard appealed the decision to the Appeals Council but it declined review. ECF No. 1 at ¶ 2. Because the Appeals Council declined review of this decision, it serves as the Commissioner's final decision for purposes of this Court's review. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). Ms. Howard filed a timely appeal in this Court, and the issues have been fully briefed. ECF Nos. 1, 15-17.

         3. The ALJ's Decision.

         The ALJ's November 2016 decision was partially favorable. R. 319. In making this determination, the ALJ followed the Social Security Administration's standard five-step process. First, the ALJ found that Ms. Howard had not engaged in substantial gainful activity since her alleged onset date of July 5, 2011. R. 327. At the step two, the ALJ found that Ms. Howard had two severe impairments: degenerative disc disease of the cervical and lumbar spines, and degenerative joint disease of the right hip. R. 327. At step three, the ALJ concluded:

1. From the alleged onset date of July 5, 2011 through September 21, 2014, Ms. Howard did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments alleged onset date of disability (“a Listing”). Further, the ALJ found that Ms. Howard had the residual functioning capacity (“RFC”) to perform light work during this time period.
2. From September 22, 2014 through March 10, 2016, Ms. Howard's right hip degenerative joint disease became severe enough that it did meet Listing 1.02A. As such, Ms. Howard is entitled to disability benefits for this period.
3. From March 11, 2016 onward, Ms. Howard's right hip no longer met a Listing. The ALJ held that medical evidence and Ms. Howard's own testimony showed that Ms. Howard's hip had medically improved and positively impacted Ms. Howard's ability to engage in substantial gainful activity. Therefore, Ms. Howard's right hip impairment no longer meets or medically equals a Listing. Additionally, the ALJ found that none of Ms. Howard's ...

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