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Debouse v. Berryhill

United States District Court, D. Colorado

December 15, 2017

TINA K. DEBOUSE, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          ORDER

          Scott T. Varholak United States Magistrate Judge.

         This matter is before the Court on Plaintiff Tina K. Debouse's Complaint seeking review of the Commissioner of Social Security's decision denying Plaintiff's application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“SSA”), 42 U.S.C. § 401 et seq., and supplemental security income benefits (“SSI”) under Title XVI of the SSA, 42 U.S.C. § 1381 et seq. [#1] The parties have both consented to proceed before this Court for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. 636(c) and D.C.COLO.LCivR 72.2. [#13] The Court has jurisdiction to review the Commissioner's final decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). This Court has carefully considered the Complaint [#1], the Social Security Administrative Record [#11], the parties' briefing [#17, 19, 21], and the applicable case law, and has determined that oral argument would not materially assist in the disposition of this appeal. For the following reasons, the Court AFFIRMS the Commissioner's decision.

         I. LEGAL STANDARD

         A. Five-Step Process for Determining Disability

         The Social Security Act defines disability as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”[2] 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just his underlying impairment.” Lax, 489 F.3d at 1084. “In determining whether an individual's physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility . . ., the Commissioner [ ] shall consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity.” 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).

         “The Commissioner is required to follow a five-step sequential evaluation process to determine whether a claimant is disabled.” Hackett v. Barnhart, 395 F.3d 1168, 1171 (10th Cir. 2005). The five-step inquiry is as follows:

1. The Commissioner first determines whether the claimant's work activity, if any, constitutes substantial gainful activity;
2. If not, the Commissioner then considers the medical severity of the claimant's mental and physical impairments to determine whether any impairment or combination of impairments is “severe;”[3]
3. If so, the Commissioner then must consider whether any of the severe impairment(s) meet or exceed a listed impairment in the appendix of the regulations;
4. If not, the Commissioner next must determine whether the claimant's residual functional capacity (“RFC”)-i.e., the functional capacity the claimant retains despite her impairments-is sufficient to allow the claimant to perform her past relevant work, if any;
5. If not, the Commissioner finally must determine whether the claimant's RFC, age, education and work experience are sufficient to permit the claimant to perform other work in the national economy.

See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005); Bailey v. Berryhill, 250 F.Supp.3d 782, 784 (D. Colo. 2017). The claimant bears the burden of establishing a prima facie case of disability at steps one through four, after which the burden shifts to the Commissioner at step five to show that claimant retains the ability to perform work in the national economy. Wells v. Colvin, 727 F.3d 1061, 1064 n.1 (10th Cir. 2013); Lax, 489 F.3d at 1084. “A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis.” Ryan v. Colvin, 214 F.Supp.3d 1015, 1018 (D. Colo. 2016) (citing Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991)).

         B. Standard of Review

         In reviewing the Commissioner's decision, the Court's review is limited to a determination of “whether the Commissioner applied the correct legal standards and whether her factual findings are supported by substantial evidence.” Vallejo v. Berryhill, 849 F.3d 951, 954 (10th Cir. 2017) (citing Nguyen v. Shalala, 43 F.3d 1400, 1402 (10th Cir. 1994)). “With regard to the law, reversal may be appropriate when [the Commissioner] either applies an incorrect legal standard or fails to demonstrate reliance on the correct legal standards.” Bailey, 250 F.Supp.3d at 784 (citing Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir.1996)).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (quoting Lax, 489 F.3d at 1084). “Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.” Grogan, 399 F.3d at 1261-62 (quoting Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992)). The Court must “meticulously examine the record as a whole, including anything that may undercut or detract from the [Commissioner's] findings in order to determine if the substantiality test has been met.'” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (quotation omitted). The Court, however, “will not reweigh the evidence or substitute [its] judgment for the Commissioner's.” Hackett, 395 F.3d at 1172.

         II. BACKGROUND

         Plaintiff was born in 1974. [AR 27, 249, 262][4] Plaintiff completed high school and took a year and a half of college courses but did not complete any advanced degree. [AR 27, 97] Plaintiff is able to communicate in English. [AR 27; see generally AR 54-80] On June 3, 2013, Plaintiff protectively filed an application for SSI and, on June 12, 2013, Plaintiff protectively filed an application for DIB. [AR 14, 249-259] In both applications, Plaintiff claimed a disability onset date of March 31, 2012, and thus Plaintiff was 37 years old at the time of the alleged onset. [AR 14, 262] Plaintiff claims disability based upon physical and mental impairments, including, but not limited to, obesity, irritable bowel syndrome (“IBS”), degenerative disc disease, gynecological illness, right shoulder bursitis and tendinitis, anxiety and depression. [See AR 16; #17 at 26] Plaintiff's most recent prior work experience was as a payroll clerk at the Mental Health Center of Denver from approximately October 3, 2012 until April 4, 2013. [AR 64, 318]

         A. Medical Background

         Plaintiff began treatment for chronic pelvic pain in approximately 2009. [AR 378, 440] Plaintiff reported pain and abnormal uterine bleeding with fist sized clots during her menstrual periods, which would last five to seven days. [AR 382, 440] Plaintiff reported some improvement through the use of oral contraceptives, but continued to experience pain and bleeding. [AR 442, 444] A hysterectomy surgery was scheduled for December 21, 2012, but Plaintiff was involved in a car accident on that date, so the surgery was rescheduled for February 1, 2013. [AR 448, 451] The successful surgery revealed that Plaintiff had an enlarged uterus and extensive adhesions and Plaintiff's uterus was rotated approximately 90 degrees toward the patient's left. [AR 382, 461-62] Plaintiff was discharged on February 4, 2013, meeting all post-operative milestones and had good pain control. [AR 465-68] At a post-operative follow-up on February 11, 2013, Plaintiff was meeting all post-operative milestones and reported that she was feeling well and very rarely noted any abdominal pain. [AR 469]

         On February 19, 2013, Plaintiff was evaluated by the wound clinic with regard to a complication with the surgical wound. [AR 470-71] The wound was treated with silver alginate rope and foam dressing and Plaintiff was instructed to change the dressing every 2-3 days. [AR 471-73] At a follow-up appointment on February 26, 2013, the wound clinic noted that Plaintiff was “tolerating dressings [to the wound] at this time” and instructed Plaintiff to change the dressing every 3-4 days. [AR 474-75] At a follow-up appointment on March 14, 2013, the wound clinic noted that Plaintiff continued to tolerate dressings and that the wound was “significantly reduced.” [AR 479] At a postoperative follow-up appointment on March 21, 2013, Plaintiff reported that her incision “has healed well, ” that she had no abdominal pain, and that the only pain she was experiencing was a result of the car accident that occurred prior to her surgery. [AR 481] At a follow-up appointment on April 1, 2013, the wound clinic concluded that Plaintiff's wound was “completely healed, and well approximated” and thus that she could discontinue the use of dressings. [AR 482]

         Immediately following the car accident on December 21, 2012, Plaintiff was taken to the emergency room and complained of “moderate” pain in her neck and lower back. [AR 449] Plaintiff was ambulatory and examination revealed “[n]o radiographic evidence of injury to the cervical or lumbar spines.” [AR 449, 490] Plaintiff continued to complain of pain in her neck, back and lower extremities following the accident and participated in various forms of testing and treatment throughout 2013 and 2014, including physical therapy, pain medication and injections. [See, e.g., AR 21, 481, 532-45, 891-991, 1145-51] The injections “relieved her pain for about one week” and reduced the intensity of the pain thereafter. [AR 538] An MRI of the lumbosacral spine taken on September 28, 2013, revealed “multiple levels [of] minimal disc bulges.” [AR 532, 546-47] Upon review of the MRI and radiographs, one doctor recommended kyphoplasty surgery on the T12 vertebra, but that surgery does not appear to have been performed. [AR 21, 1024]

         Plaintiff also complains of right shoulder pain that started after the car accident. [AR 21, 66-67, 1162-63] A November 2013 MRI revealed no tendon or ligament tears but “[m]ild supraspinatus tendinosis associated with mild subacromial subdeltoid bursitis.” [AR 1166] At an appointment with a surgical center on December 3, 2013, Plaintiff reported right shoulder pain with overhead activity, pain that wakes her at night, and pain putting on her shirt or overcoat. [AR 1162] Upon examination of her right shoulder, the doctor observed that Plaintiff had a “[f]ull range of motion” and no deformity, but he found positive signs of impingement. [AR 1163] Although the doctor suggested that arthroscopy of the shoulder may be appropriate, no surgery appears to have taken place. [AR 22, 1161]

         Plaintiff also complains of abdominal pain that began in 2006, which she believes to be associated with IBS. [AR 68-69] Plaintiff testified that she has cramping, diarrhea and constipation that requires her to use the restroom for ten to fifteen minutes, three to four times a day. [AR 68-70] On or about September 26, 2014, Plaintiff was diagnosed with “non-tropical sprue (celiac disease).” [AR 1019] On October 29, 2014, Plaintiff's primary care physician-Dr. Jesper Brickley-noted that Plaintiff requested that he “change the data” on the evaluation form that he had completed for an IBS disability, because Plaintiff had received negative ...


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