United States District Court, D. Colorado
Brooke Jackson United States District Judge.
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.
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.
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.
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.
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.
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.
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. 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.
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.
The ALJ's Decision.
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
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
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
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 ...