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Terrell v. Berryhill

United States District Court, D. Colorado

March 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 Yvonne Marie Terrell'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. [#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 [#15, 16], 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 this matter 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;[4]
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 February 1963. [AR 142, 145][5] Plaintiff speaks and understands English and received her General Equivalency Degree (“GED”). [AR 31, 168; see generally AR 30-48] On October 28, 2013, Plaintiff protectively filed an application for DIB and, on December 24, 2013, Plaintiff protectively filed an application for SSI. [AR 142-50] In both applications, Plaintiff claimed a disability onset date of September 14, 2013, and thus Plaintiff was 50 years old at the time of the alleged onset. [AR 142, 145] Plaintiff claims disability based upon physical and mental impairments resulting from strokes Plaintiff suffered in September 2013. [AR 19, 29-30; #15 at 4-7] Plaintiff had previously worked as a medical clerk, but has not performed that or any other work since September 2013. [AR 31-35, 175]

         A. Medical Background

         In 2009, Plaintiff was hospitalized for hemorrhagic stroke. [AR 391] A conventional catheter arteriography on September 18, 2009 revealed a saccular aneurysm of the right internal carotid artery. [Id.] Plaintiff elected to have endovascular treatment-i.e., coiling. [Id.]

         In February 2013, Plaintiff was taken to the hospital by ambulance with a severe headache and was diagnosed with a subarachnoid hemorrhage due to a ruptured aneurism. [AR 217-18, 224] Plaintiff underwent interventional radiology and had cerebral angiogram with coiling of an ACOM aneurysm as well as a right ICA/superior hypophyseal aneurysm. [AR 222] Plaintiff spent two weeks in intensive care. [Id.] Plaintiff was then transferred to the neuro medical floor, which noted that Plaintiff has “a longstanding history of poorly controlled hypertension.” [Id.] Plaintiff was discharged and was able to return to work. [AR 459]

         On or about September 19, 2013, Plaintiff was readmitted to the hospital for placement of a flow-diverting stent into the right ICA aneurysm; there were several unsuccessful attempts to place the stent. [AR 273] On September 20, 2013, Plaintiff was noted to have unexpected left hemiparesis. [Id.] An MRI of her brain showed multiple right middle cerebral artery borderzone strokes involving the basal ganglia, right occipital, right cerebellar, and right pons. [AR 272-73] Plaintiff also was noted to have malignant hypertension that was difficult to control. [AR 273] Plaintiff was admitted to the ICU for observation and was determined to have left hemiparesis, dysphagia, cognitive deficit, and abulia. [Id.] Medical personnel determined that Plaintiff “would require [an] interdisciplinary rehabilitation program prior to her being able to return home” and she was admitted for rehabilitation. [Id.]

         Plaintiff remained in the in-patient rehabilitation program for over a month-until approximately November 8, 2013. [AR 272-75] At the time of admission to the rehabilitation program, Plaintiff required moderate assistance for transfers from sitting to standing, maximum assistance for eating and grooming and for upper and lower extremity dressings, and was dependent on assistance for bathing and toileting. [AR 275] Plaintiff also had significant neurocognitive deficits, requiring moderate to maximum cues to correctly answer questions and verbal cues to initiate responses. [AR 458, 460] Plaintiff required a longer processing time and had 57% accuracy in her answers to problem-solving tasks. [AR 460] At admission, Plaintiff had mild-to-moderate deficits in auditory ...

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