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Berg v. Berryhill

United States District Court, D. Colorado

January 3, 2018

NANCY A. BERRYHILL, [*] Defendant.



         This 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], [1] 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 further proceedings.


         This 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.

         The 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].

         At the 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].

         Regarding 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].

         Despite 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, 58].

         A VE 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”)[2] 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.

         First, 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 63-64].

         On 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).


         In 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).


         I. The ALJ's Decision

         An 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.

         The 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 ...

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