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Bills v. Berryhill

United States District Court, D. Colorado

January 16, 2018

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.


          Scott T. Varholak United States Magistrate Judge

         This matter is before the Court on Plaintiff Ruby Bills'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.[2] [#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. [#12] 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 [#10], the parties' briefing [#14, 15], 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.


         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.”[3] 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;”[4]
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]
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.


         Plaintiff was born in 1959. [AR 206, 210][6] Plaintiff completed high school and took a year and a half of college courses but did not complete any certificate or advanced degree. [AR 497] Plaintiff is able to communicate in English. [See generally AR 40-60, 490-518] Plaintiff protectively filed an application for SSI and an application for DIB, both dated August 1, 2011. [AR 206-219] In both applications, Plaintiff claimed a disability onset date of January 14, 2011 [AR 206, 210], but Plaintiff subsequently amended the alleged onset date to May 19, 2010 [AR 291, 460, 494]. Plaintiff claims disability based upon physical and mental impairments, including, but not limited to, anxiety, obesity, scoliosis, asthma/chronic obstructive pulmonary disease (“COPD”), and gastroesophageal reflux disease (“GERD”). [See #14 at 11-14; AR 463-468] Plaintiff's most recent prior work experience includes various short-term assignments through a temporary staffing agency and full time employment at Conoco from 1999 to 2004. [AR 288, 498-499]

         A. Medical Background

         The Court offers a brief summary of the Plaintiff's medical history here and elaborates as necessary in its analysis.

         Plaintiff testified that she was diagnosed with asthma in 1990 at the age of 30. [AR 51, 501] Plaintiff's medical records from 2010 through 2011 reflect that, although Plaintiff reported that her asthma caused her to awaken in the middle of the night, the asthma was stable to well-controlled. [See, e.g., AR 395-415] For example, during a May 2011 doctor's visit, Plaintiff reported that her asthma was “doing well except with occasional nighttime awakening.” [AR 340] At an August 2012 doctor's visit, an Asthma Control Test indicated that Plaintiff's asthma was “very poorly controlled.” [AR 437] In October 2012, Plaintiff's doctor assessed her asthma as “well-controlled” with medication. [AR 374] At the hearing in March 2013, Plaintiff testified that her asthma was flaring approximately twice a day, brought on by exposure to smells, dirt and dust. [AR 51-52] At a December 2013 doctor's appointment, Plaintiff reported that, despite being off her asthma medication for over two weeks, she did not experience any worsening symptoms, asthma exacerbations, or nocturnal awakenings. [AR 794] The doctor noted that Plaintiff's spirometry demonstrated stable airflow but reflected an obstructive airflow pattern consistent with both asthma and COPD. [AR 796] During a February 2015 doctor's visit, Plaintiff reported minimal rescue inhaler use and no emergency room visits, but noted that the asthma was worse in cold conditions and that she had used the rescue inhaler once while walking in the cold to take the bus that morning. [AR 774] At the 2016 hearing, Plaintiff testified that her asthma flared mostly during her sleep, causing her to wake up at least once every night. [AR 501] Plaintiff takes medication for her asthma, which she testified was helpful. [AR 52, 501-502]

         In November 2009, Plaintiff sought treatment for back pain, informing the doctor that she had a history of scoliosis for which she had taken muscle relaxants with no significant improvement in symptoms. [AR 314] A comparison of x-rays taken in November 2009 showed “stable convex left curvature of the cervicothoracic spine without focal vertebral body abnormality.” [AR 325] In August 2012, Plaintiff reported continued back pain as a result of the scoliosis to her doctor. [AR 437]

         Plaintiff's medical records dating back to at least 2009 reflect issues with heartburn and a diagnosis of GERD. [AR 317, 414] Records from 2010 and 2011 reflect that the GERD was “well-controlled” on medication. [AR 340; see also AR 395-415] In October 2012, Plaintiff reported more frequent episodes of heartburn and acid reflux to her doctor. [AR 373-374] In August 2013, Plaintiff had laproscopic surgery to remove her gallbladder. [AR 764-766] At the 2016 hearing, Plaintiff testified that, as a side effect of the surgery, bile backs up in her stomach, triggering acid reflux and causing her stomach to “burn like it's on fire.” [AR 500] Plaintiff testified that she experiences this daily. [Id.] Although Plaintiff takes multiple medications for this condition, she testified that they were not effective. [Id.] At a December 2013 doctor's appointment, Plaintiff denied indigestion, heartburn or reflux and noted that she had been off of her GERD medication “secondary to insurance issues.” [AR 795] In August 2014, Plaintiff saw her doctor for a burning-type discomfort that could reach 10 out of 10 on an intensity scale and last up to 24 hours, which the doctor described as atypical for GERD symptoms. [AR 781-782] In November 2014, Plaintiff reported that she had been doing well until her GERD symptoms returned a month ago. [AR 778] A December 2014 CT scan of Plaintiff's abdomen and pelvis suggested an incomplete bowel rotation without obstruction. [AR 826-827] During a February 2015 doctor's visit, Plaintiff reported that her ...

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