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Rodriguez v. Berryhill

United States District Court, D. Colorado

January 12, 2018

NANCY A. BERRYHILL, [*] Defendant.



         This civil action arises under Title II of the Social Security Act (“Act”), 42 U.S.C. § 401- 33, for review of the Commissioner of Social Security's (“Commissioner” or “Defendant”) final decision denying Plaintiff Annette Rodriguez's (“Plaintiff” or “Ms. Rodriguez”) application for Disability Insurance Benefits (“DIB”). Pursuant to the Order of Reference dated May 8, 2017 [#22], [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 [#17; #18], the entire case file, the Administrative Record, and the applicable case law, I respectfully REVERSE the Commissioner's decision and REMAND for further proceedings.


         This case arises from Plaintiff's application for DIB filed on or about June 10, 2013. [#14-2 at 13; #14-3 at 119-26; #14-6 at 289-92]. Ms. Rodriguez completed eleventh grade, and did not receive a General Equivalency Diploma (“GED”). See [#14-2 at 60]. Plaintiff alleges she became disabled on April 9, 2013, one day after an Administrative Law Judge (“ALJ”) denied her previous application for DIB [#14-3 at 97-118], due to thyroid problems, anxiety, depression, chronic headaches, and fibromyalgia (“FM”), see [#14-2 at 13; #14-3 at 120]. Ms. Rodriguez was thirty-six years old at the date of onset of her claimed disability. [#14-3 at 120].

         The Colorado Department of Human Services denied Plaintiff's application administratively on or about December 27, 2013. See [id. at 119]. Ms. Rodriguez timely filed a request for a hearing before an ALJ on January 23, 2014. See [#14-4 at 201]. ALJ Patricia E. Hartman (the “ALJ”) convened a hearing on January 27, 2015. [#14-2 at 54, 56]. Attorney Bradford D. Myler represented Ms. Rodriguez at the hearing, and the ALJ received testimony from Plaintiff and Vocation Expert (“VE”) Deborah Christensen. See [id. at 13].

         At the hearing, Plaintiff testified that she lives in a house with her four children and her grandson. See [id. at 59-60]. Plaintiff explained that she derives a small amount of income from her part-time job as a customer service telemarketer with Arc Thrift Stores; she began working for Arc Thrift Stores in or around May 2012. [Id. at 60-61]. She testified that she works roughly twenty-one (21) hours per week, working four (4) hours at a time; however, she stated that sitting for the four-hour workday causes significant back pain, and that she could not work full-time because of her anxiety and back pain. See [id. at 61, 63, 74].

         Regarding her physical ailments, Ms. Rodriguez testified that her issues with sitting began approximately six (6) months prior to the hearing due to a bulged disc, among other abnormalities. [Id. at 63]. Plaintiff explained she has constantly dealt with lower back pain, but it was only recently that she sought treatment, including spine injections, for the pain. [Id. at 63, 71]. Ms. Rodriguez stated that the spine injections helped alleviate some pain on “left side but not [her] right side, ” and that she was awaiting further treatment options from her doctors. [Id.]. Plaintiff also testified that she tried physical therapy for her lower back pain, which helped somewhat, but that she was awaiting further instruction from her doctor before starting it again. [Id. at 64]. More recently, Plaintiff has experienced constant right hip pain, which her doctors think may be related to her lower back and which may require surgery, as well as constant right leg pain, including numbness. [Id. at 72, 74]. Plaintiff then testified to severe daily migraine headaches that can last the whole day or a couple of hours depending on their severity; at least four (4) times per month, Plaintiff's migraine headaches are so severe that she becomes too ill to work. See [id. at 75-76]. Plaintiff also noted “burning pain through [her] body all the time” because of FM. [Id. at 76].

         When asked what aggravates her back pain, Ms. Rodriguez responded “sitting or walking, ” but that lying down with a heating pad and elevating her leg helped alleviate her pain. [Id. at 66, 74]. On her good days, Plaintiff's pain is around 5-6 out of 10, and 9 out of 10 on her bad days-usually when she gets home from work and has been sitting too long. [Id. at 66, 73]. Plaintiff primarily takes Motrin once a day for her lower back pain, with little relief, and once had a prescription for Norco that also did not help much. [Id. at 64, 72-73]. She also tried Topamax and Imetrex for her migraine headaches, but neither provided much relief [ 75- 76], and she currently takes Gabapentin for her FM [id. at 76]. Ms. Rodriguez also testified that she could only sit, stand, or walk for about forty-five (45) minutes due to her back pain; that she could carry/lift only ten (10) pounds; and that her back pain made it difficult for her to sleep at night. [Id. at 66-68].

         As to her mental impairments, Plaintiff testified to having problems with anxiety that began 3-4 years ago. [Id. at 64]. Plaintiff explained that her anxiety typically stems from going to places with lots of people and crowds. [Id. at 65]. For her anxiety, Plaintiff takes the medication Lorazepam, which helps alleviate her anxiety, and that she sees a therapist once a week. [Id. at 64, 65]. Ms. Rodriguez was hospitalized once due to an anxiety attack. [Id. at 65].

         Despite her ailments, Plaintiff testified that she drives “maybe a couple miles a day” [id. at 60]; that she has no issues with daily grooming [id. at 69]; that she cooks only “a fast meal for [her] kids” [id.]; that she does the dishes, vacuuming, laundry, and grocery shopping a few times per week [id.]; that she does not do yard work or take out the trash [id.]; that she pays bills [id.]; and that does not walk and had to give up playing basketball with her children [ 70-71]. Socially, Plaintiff stated she does not attend religious observations; she visits her parents twice per month; she goes to the movies once per month; she goes out to eat twice per month; and she does not volunteer. [Id. at 70].

         A VE also testified at the hearing. The VE first summarized Ms. Rodriguez's relevant past work experience as a Customer Service Representative-a specific vocational preparation (“SVP”)[2] level 5 sedentary exertion job. See [id. at 78]. The VE was then asked to consider an individual who could perform work at all exertional levels, but could not climb ladders and scaffolds; could frequently stoop, kneel, crouch, and crawl; and was limited to SVP level 4 work, but could tolerate few changes in routine work setting with frequent interaction with supervisors, coworkers, and the public. [Id. at 78]. In response, the VE testified that such an individual could not perform Ms. Rodriguez's prior relevant work. [Id. at 78]. However, the VE continued that such an individual could perform the jobs of cleaner, housekeeping a SVP level 2 light exertion job; a kitchen helper a SVP level 2 medium exertion job; and a commercial cleaner a SVP level 2 heavy exertion job. [Id. at 78-79]. In response to questioning from Plaintiff's counsel, the VE stated that the amount of off-task time that would affect an individual's employment was “greater than 15 percent, ” and that the typical absentee rate is “one to two days monthly[.]” [Id. at 79]. The VE stated that her testimony was consistent with the Dictionary of Occupational Titles (“DOT”). [Id.].

         At the conclusion of the hearing, Plaintiff's counsel requested a consultative examination, given that the previous consultative examination was conducted in 2012-before an MRI revealed “nerve root compression.” [Id. at 80]. The ALJ took the request under advisement. [Id.]. On March 20, 2015, the ALJ issued a decision finding Ms. Rodriguez not disabled under the Act and denying her request for a consultative examination. [#14-2 at 13, 23]. 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, 8-9]. Plaintiff sought judicial review of the Commissioner's final decision in the United States District Court for the District of Colorado on November 17, 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). An individual is determined to be under a disability only if his “physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his 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 ...

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