Brick v. Colvin

          ORDER

          Kathleen M. Tafoya, United States Magistrate Judge.

         This 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.^[1] Jurisdiction is proper under 42 U.S.C. § 405(g).

         Plaintiff 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 [“Reply”]).

         FACTUAL AND PROCEDURAL BACKGROUND

         In 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.^[2] 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.

         The ALJ 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. (AR 49).

         Plaintiff sought timely review before this Court.

         STANDARD OF REVIEW

         A 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 Cir. 1995).

         Review 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).

         Further, “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.

         As the 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.

         ANALYSIS

         Plaintiff 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 ...