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Pedone v. Berryhill

United States District Court, D. Colorado

January 18, 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 Walter Ah (“Anthony”) Pedone'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. [#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. [#13] 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 [#11], the parties' briefing [##16, 17, 18], 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 REVERSES the Commissioner's decision and REMANDS for further proceedings.


         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.”[2] 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;”[3]
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. 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 1955. [AR 23, 117][4] Plaintiff completed high school and four years of college education. [AR 23, 135] Plaintiff is able to communicate in English. [AR 23] On December 27, 2012, Plaintiff protectively filed an application for DIB. [AR 16, 52-53] Plaintiff claimed a disability onset date of March 1, 2010, and thus Plaintiff was 54 years old at the time of the alleged onset. [AR 16, 23, 53, 117, 130] Plaintiff claims disability based upon mental impairments, including, but not limited to, bipoloar disorder, depression, anxiety, difficulty sleeping, and post-traumatic stress disorder (“PTSD”). [See AR 52-53, 134] Plaintiff worked as a pharmacist at Safeway from at least 1997 until March 1, 2010, the alleged onset date. [See AR 120-22, 135; see also #16 at 20 (noting Plaintiff worked as a pharmacist beginning in 1974)] Plaintiff attempted to return to work at Safeway after suffering a mental breakdown, but was unsuccessful and quit. [AR 344; see also Id. at 120-22] He then attempted to work at a different establishment, Albertsons, LLC, but was unable to concentrate and was afraid of making a mistake that might endanger the public. [AR 344] Plaintiff worked exclusively as a pharmacist before he became unable to work. [AR 135; see also #16 at 20]

         A. Medical Background

         Plaintiff began to see his treating psychiatrist, Dr. Brett Fouss, in June 2009. [AR 320] Plaintiff reported a history of abuse, anxiety including social anxiety, and depression since junior high school. [AR 320-21, 327] Dr. Fouss assessed Plaintiff with generalized anxiety disorder and a rule out diagnosis for PTSD. [AR 321] Plaintiff continued to see Dr. Fouss for follow-up appointments throughout 2009. [AR 304, 311, 314, 317, 326] Plaintiff also saw Dr. Stacey Porterfield, who treated him for bipolar disorder, anxiety, and obstructive sleep apnea. [AR 196-220] While Plaintiff consistently reported difficulties with depression and anxiety during this time, Plaintiff's medical providers also noted that he was exercising regularly, including hiking in the mountains, and routinely adjusted medications in order to manage Plaintiff's conditions. [AR 202, 311, 317, 326] On October 8, 2009, Plaintiff reported to Dr. Fouss that he was having difficulty sleeping, crying often, and that he needed to take a leave of absence from work because of a mistake he had made. [AR 314] Dr. Fouss observed that Plaintiff was “tearful, but able to regroup.” [Id.] A few weeks later, Dr. Fouss again noted that Plaintiff was seeking leave from work, but that Plaintiff planned to return to work and was feeling “a lot better, ” with his anxiety improved. [AR 311] Dr. Fouss also observed that Plaintiff was hiking in the mountains for exercise. [Id.] Dr. Fouss sent a letter to the Safeway Human Services Department in support of Plaintiff's leave of absence, anticipating that Plaintiff would “return to work full time” by November 21, 2009. [AR 307]

         By December 3, 2009, Plaintiff had returned to work and Dr. Fouss reported that Plaintiff's work was going well, and that his sleep apnea was being managed by the CPAP device. [AR 302] Around the same time, Dr. Porterfield noted that Plaintiff was “doing well” on his current medications. [AR 196] Dr. Porterfield continued to treat Plaintiff for bipoloar disorder and obstructive sleep apnea through June 2010. [AR 193] At the June 2010 ...

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