United States District Court, D. Colorado
Kathleen M. Tafoya, United States Magistrate Judge.
matter comes before the court on review of the
Commissioner's denial of Plaintiff Cecily Brick's
application for Social Security disability benefits pursuant
to Titles II and XVI of the Social Security
Act. Jurisdiction is proper under 42 U.S.C.
filed her opening brief on August 22, 2016 (Doc. No. 14
[“Opening Br.”]), Defendant filed her response on
September 8, 2018 (Doc. No. 15 [“Resp.”]), and
Plaintiff filed her reply on September 26, 2016 (Doc. No. 18
AND PROCEDURAL BACKGROUND
denying Plaintiff's claim, Commissioner found Plaintiff
not disabled under the Social Security Administration's
regulations (“SSA”). (AR 15-31, 35-51). In
determining disability, the ALJ used the five-step sequential
evaluation process. After reviewing the record, the ALJ
found that Plaintiff had severe impairments that included
interstitial cystitis with recurrent urinary tract
infections, endometriosis and Nabothian cysts, and migraine
headaches (AR 40). However, the ALJ found that she did not
have an impairment or combination of impairments listed in or
medically equal to one contained in 20 C.F.R. part 404,
subpart P, appendix 1.
assessed Plaintiff's residual functional capacity
(“RFC”), and found her capable of working as
follows: “The claimant the RFC to perform light
work….She can occasionally climb ramps and stairs, but
cannot climb ladders or scaffolds. She can occassionaly
stoop, knell, crouch and crawl. She cannot work at
unprotected heights or with dangerous, unprotected machinery.
The claimant is limited to work with a maximum specific
vocational preparation (SVP) two, this simple, routine and
repetitive. She can have occasional interaction with
supervisors, coworkers and the public.” (AR 43). Based
on this RFC, the ALJ found that Plaintiff's impairments
would not preclude her from performing work that exists in
significant numbers in the national economy, including work
as a cleaner/housekeeper and bench assembler (AR 48).
Consequently, the ALJ found that Plaintiff was not disabled.
sought timely review before this Court.
person is disabled within the meaning of the Social Security
Act only if her physical and/or mental impairments preclude
him from performing both his previous work and any other
“substantial gainful work which exists in the national
economy.” 42 U.S.C. § 423(d)(2). “When a
claimant has one or more severe impairments the Social
Security [Act] requires the [Commissioner] to consider the
combined effect of the impairments in making a disability
determination.” Campbell v. Bowen, 822 F.2d
1518, 1521 (10th Cir. 1987) (citing 42 U.S.C. §
423(d)(2)(C)). However, the mere existence of a severe
impairment or combination of impairments does not require a
finding that an individual is disabled within the meaning of
the Social Security Act. To be disabling, the claimant's
condition must be so functionally limiting as to preclude any
substantial gainful activity for at least twelve consecutive
months. See Kelley v. Chater, 62 F.3d 335, 338 (10th
of the Commissioner's disability decision is limited to
determining whether the ALJ (1) applied the correct legal
standard and (2) whether the decision is supported by
substantial evidence. Hamilton v. Sec'y of Health and
Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992);
Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir.
1990). Substantial evidence is evidence a reasonable mind
would accept as adequate to support a conclusion.
Brown, 912 F.2d at 1196. It requires more than a
scintilla but less than a preponderance. Hedstrom v.
Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992).
“Evidence 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).
“if the ALJ failed to apply the correct legal test,
there is a ground for reversal apart from a lack of
substantial evidence.” Thompson v. Sullivan,
987 F.2d 1482, 1487 (10th Cir. 1993). The court
“meticulously examine[s] 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.” Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations
omitted). However, the court may not reweigh the evidence or
substitute its discretion for that of the Commissioner.
Thompson, 987 F.2d at 1487.
Tenth Circuit observed in Baca v. Dep't of Health
& Human Servs., 5 F.3d 476, 480 (10th Cir. 1993),
the ALJ also has a basic duty of inquiry to “fully and
fairly develop the record as to material issues.”
Id. This duty exists even when the claimant is
represented by counsel. Id. at 480. Moreover, the
court may not affirm an ALJ's decision based on a
post-hoc rationale supplied in an appellate brief,
since doing so would “usurp essential functions
committed in the first instance to the administrative
process.” Allen v. Barnhart, 357 F.3d 1140,
1142 (10th Cir. 2004). Although the Tenth Circuit has applied
the doctrine of harmless error in administrative appeals, it
is only appropriate where “no reasonable administrative
factfinder, following the correct analysis, could have
resolved the factual matter in any other way.”
Id. at 1145.
raises several issues for consideration-primarily challenging
the ALJ's application of treating physician principles.
Plaintiff also contends that the ALJ's analysis engaged
in cherry-picking evidence that was consistent with the final
outcome, while ignoring evidence that was ...