United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. WANG, UNITED STATES MAGISTRATE JUDGE.
civil action arises under Titles II and XVI of the Social
Security Act (“Act”), 42 U.S.C. §§
401-33 and 1381-83(c) for review of the Commissioner of
Social Security's (“Commissioner” or
“Defendant”) final decision denying Plaintiff
Siarra Berg's (“Plaintiff” or “Ms.
Berg”) applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”). Pursuant to the Order of Reassignment
dated March 22, 2017 [#20],  this civil action was assigned to
this Magistrate Judge for a decision on the merits.
See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73;
D.C.COLO.LCivR 72.2. After carefully considering the
Parties' briefing [#15; #16; #17], the entire case file,
the Administrative Record, and the applicable case law, this
court respectfully REVERSES the
Commissioner's decision and REMANDS for
case arises from Plaintiff's applications for DIB and SSI
filed on or about April 30, 2013. [#11-2 at 12; #11-3 at
76-79]. Ms. Berg graduated from high school and pursued a
degree in Administrative Support from the Southern Institute
of Technology before she withdrew due to her medical
conditions. See [#11-2 at 47; #11-7 at 339-52].
Plaintiff alleges that she became disabled on October 1,
2006, due to depression, post-traumatic stress disorder
(“PTSD”), migraines, attention deficit disorder
(“ADD”), bipolar disorder, obsessive compulsive
disorder (“OCD”), anxiety, macular degeneration,
postural orthostatic tachycardia syndrome
(“POTS”), severe fibromyalgia, chronic fatigue,
degenerate back disease, child abuse, and eosinophilic
esophagitis (“EE”). See [#11-3 at 96;
#11-7 at 309]. Ms. Berg was twenty-eight years old at the
date of onset of her claimed disability.
Colorado Department of Human Services denied Plaintiff's
applications administratively on or about November 6, 2013.
See [#11-4 at 115-20]. Ms. Berg timely filed a
request for a hearing before an Administrative Law Judge
(“ALJ”) on November 26, 2013. See
[id. at 121]. ALJ Jennifer A. Simmons (the
“ALJ”) convened a hearing on December 4, 2014,
but postponed that hearing until February 3, 2015, so
Plaintiff could seek attorney representation. [#11-2 at 42,
72]. At the hearing, Ms. Berg proceeded pro se, and
the ALJ received testimony from Plaintiff and Vocation Expert
(“VE”) Dr. Irmo Marini. See
[id. at 37].
hearing, Plaintiff testified that she has not worked in the
last several years, relying on Temporary Assistance for Needy
Families (“TANF”) to provide for herself and two
teenage children. See [id. at 44].
Plaintiff explained that she would pass out on the job, which
led to her termination in or about 2005 or 2006 [id.
at 48], and that she has not worked since because there are
“days she hurts so bad that [she] can hardly do
anything, like [her] muscles don't work like a
person['s]” [id. at 55]. Ms. Berg
testified that her medical ailments and surgeries also forced
her to withdraw from classes at the Southern Institute of
Technology in 2008. [Id. at 47].
her physical ailments, Ms. Berg testified that she was still
recovering from a contusion on her ribs following an
automobile accident [id. at 45-46], that she
frequently loses consciousness and faints due to her POTS
[id. at 46, 49], and that she suffers from plantar
fasciitis, chronic pain, migraines, degenerative disc
disease, macular degeneration, neuropathy, and hearing loss
[id. at 47, 49, 50, 51, 55, 58, 59-60]. As to her
mental ailments, Plaintiff testified that she suffers from
anxiety and has panic attacks. [Id. at 50].
these ailments, Plaintiff testified that she can drive, with
licenses to operate an automobile and a motorcycle, but that
she cannot swim or raise her hands above her head or she will
lose consciousness. [Id. at 49]. Plaintiff continued
that she goes grocery shopping with her sons [id.];
that she babysat her brother's three children for a month
before it became too much for her body to handle
[id. at 50-51]; that she talks on the phone with a
friend [id. at 51-52]; that she walks her 140-pound
dog once or twice a day and takes him to the park four or
five blocks from her home [id. at 54]; that she
cares for her dog and buys him food that her sons lift
[id. at 55]; and that she sits on an exercise ball
to strengthen her core [id. at 57-58]. Plaintiff
testified, however, that, depending on the pain, she could
only walk short distances; she cannot take hot showers or she
will faint; and nothing relieves her chronic pain, including
physical therapy. See [id. at 55, 56, 57,
also testified at the hearing. Though not testifying as to
her relevant past work experience, the record indicates that
Plaintiff worked as a restaurant hostess, a specific
vocational preparation (“SVP”) level 6 light
exertion job, and as an Administrative Assistant, a SVP level
7 sedentary job. See [#11-7 at 360]. The VE did,
however, provide answers to several hypotheticals posited by
the ALJ, concerning work individuals with similar ailments as
Plaintiff could perform.
the VE was to consider a younger individual with a high
school degree and some college that could perform light work
with the following limitations: (1) lifting, carrying,
pushing and/or pulling 20 pounds occasionally and 10 pounds
frequently; (2) standing, walking, and sitting about 6 out of
8 hours per workday; (3) no climbing of ladders, ropes, or
scaffolds; (4) frequently climbing ramps and stairs,
stooping, crawling, kneeling, and balancing; (5) no work at
hazardous heights or around dangerous machinery; and (6)
ability to understand, remember, and carry out simple,
routine tasks, with only occasional interaction with the
public and co-workers, but frequent interactions with
supervisors. [#11-2 at 62-63]. In response, the VE testified
that such an individual could perform light, unskilled work
as an office cleaner, a mail clerk, and an office clerk
helper-all SVP level 2 jobs that existed in significant
numbers in the national economy. [Id. at 63].
Second, assuming the same individual as hypothetical one but
that this individual would be off task 20% of the workday in
addition to normal breaks, the VE testified that no gainful
employment existed for such an individual. [Id. at
64]. Third, and finally, the VE testified that, besides the
mail clerk position, such an individual from hypothetical one
could miss at least 2 days of work per month and perform the
jobs as an office cleaner and office clerk helper; however,
none of the identified jobs would tolerate missing four days
per month. See [id.]. The VE stated that
his testimony was consistent with the Dictionary of
Occupational Titles (“DOT”). [Id. at
April 6, 2015, the ALJ issued a decision finding Ms. Berg not
disabled under the Act. [#11-2 at 29]. Plaintiff requested
Appeals Council review of the ALJ's decision, which the
Appeals Council denied, rendering the ALJ's decision the
final decision of the Commissioner. [Id. at 1-4].
Plaintiff sought judicial review of the Commissioner's
final decision in the United States District Court for the
District of Colorado on November 4, 2016, invoking this
court's jurisdiction to review the Commissioner's
final decision under 42 U.S.C. § 1383(c)(3).
reviewing the Commissioner's final decision, the court is
limited to determining whether the decision adheres to
applicable legal standards and is supported by substantial
evidence in the record as a whole. Berna v. Chater,
101 F.3d 631, 632 (10th Cir. 1996) (citation omitted);
accord Thompson v. Sullivan, 987 F.2d 1482, 1487
(10th Cir. 1993) (“[I]f the ALJ failed to apply the
correct legal test, there is a ground for reversal apart from
a lack of substantial evidence.” (internal citation
omitted)). The court may not reverse an ALJ simply because
she may have reached a different result based on the record;
the question instead is whether there is substantial evidence
showing that the ALJ was justified in her decision. See
Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).
“Substantial evidence is more than a mere scintilla and
is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Flaherty v.
Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (internal
citation omitted). However, “[e]vidence is not
substantial if it is overwhelmed by other evidence in the
record or constitutes mere conclusion.” Musgrave v.
Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) (internal
citation omitted). The court may not “reweigh the
evidence or retry the case, ” but must
“meticulously examine the record as a whole, including
anything that may undercut or detract from the ALJ's
findings in order to determine if the substantiality test has
been met.” Flaherty, 515 F.3d at 1070
(internal citation omitted).
The ALJ's Decision
individual is eligible for DIB benefits under the Act if she
is insured, has not attained retirement age, has filed an
application for DIB, and is under a disability as defined in
the Act. 42 U.S.C. § 423(a)(1). SSI is available to an
individual who is financially eligible, files an application
for SSI, and is disabled as defined in the Act. 42 U.S.C.
§ 1382. An individual is determined to be under a
disability only if her “physical or mental impairment
or impairments are of such severity that [s]he is not only
unable to do [her] previous work but cannot, considering
[her] age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the
national economy. . . .” 42 U.S.C. § 423(d)(2)(A).
The disabling impairment must last, or be expected to last,
for at least 12 consecutive months. See Barnhart v.
Walton, 535 U.S. 212, 214-15 (2002). Additionally, the
claimant must prove she was disabled prior to her date last
insured. Flaherty, 515 F.3d at 1069.
Commissioner has developed a five-step evaluation process for
determining whether a claimant is disabled under the Act. 20
C.F.R. § 404.1520(a)(4)(v). See also Williams v.
Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (describing
the five steps in detail). “If a determination can be
made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not
necessary.” Williams, 844 F.2d at 750. Step
one determines whether the claimant is engaged in substantial
gainful activity; if so, disability benefits are denied.
Id. Step two considers “whether the claimant
has a medically severe impairment or combination of
impairments, ” as governed by the Secretary's
severity regulations. Id.; see also 20
C.F.R. § 404.1520(e). If the claimant is unable to show
that her impairments would have more than a minimal effect on
her ability to do basic work activities, she is not eligible
for disability benefits. If, however, the claimant presents
medical evidence and makes the de minimis showing of
medical severity, the decision maker proceeds to Step 3.
Williams, 844 F.2d at 750. Step three
“determines whether the impairment is equivalent to one
of a number of listed impairments that the Secretary
acknowledges are so severe as to preclude substantial gainful
activity, ” pursuant to 20 C.F.R. § 404.1520(d).
Id. At step four of the evaluation process, the ALJ
must determine a claimant's Residual Functional Capacity
(“RFC”), which defines the maximum amount of work
the claimant is still “functionally capable of doing on
a regular and continuing basis, despite his impairments: the
claimant's maximum sustained work capability.”
Williams, 844 F.2d at 751; see also Id. at