United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. WANG, UNITED STATES MAGISTRATE JUDGE
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],  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
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].
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].
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].
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].
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 [id.at 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].
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].
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 [id.at 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].
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”) 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”).
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).
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). 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 ...