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Brinkey v. Berryhill

United States District Court, D. Colorado

March 16, 2018

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.


          R. Brooke Jackson United States District Judge

         This matter is before the Court on review of the Social Security Administration (“SSA”) Commissioner's decision denying claimant Shawn William Brinkey's application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. Jurisdiction is proper under 42 U.S.C. § 405(g). For the reasons explained below, the Court AFFIRMS the Commissioner's decision.


         This appeal is based upon the administrative record and the parties' briefs. In reviewing a final decision by the Commissioner, the District Court examines the record and determines whether it contains substantial evidence to support the Commissioner's decision and whether the Commissioner applied the correct legal standards. Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996). A decision is not based on substantial evidence if it is “overwhelmed by other evidence in the record.” Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988). Substantial evidence requires “more than a scintilla, but less than a preponderance.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Evidence is not substantial if it “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Reversal may also be appropriate if the Commissioner applies an incorrect legal standard or fails to demonstrate that the correct legal standards have been followed. Winfrey, 92 F.3d at 1019.


         Shawn William Brinkey was born in 1968 and is currently 49 years old. R. 87. He filed for disability in 2014 at the age of 44, alleging disability due to autism with an onset date of 2002. See, e.g., R. 87, 90-91. Mr. Brinkey has also asserted mental impairments including panic disorder with agoraphobia, dependent personality disorder, and a learning disability. ECF No. 13 at 6. Records from his high school indicate that Mr. Brinkey was in special education classes and had emotional difficulties, but he was deemed to have made improvements and was moved to general education classes by the end of high school. R. 284-307. Mr. Brinkey graduated high school and went on to work for ten years as a janitor and painting trains at a toy train factory, where his father also worked. R. 15, 26, 45-47, 203, 213, 314. When the factory closed Mr. Brinkey lost his job, and he has been unemployed since. R. 46-47, 218.

         A. Procedural History.

         Mr. Brinkey filed a claim for disability insurance benefits and supplemental security income benefits on February 21, 2014. R. 21. Mr. Brinkey alleged disability beginning January 1, 2002 with respect to his Title II claim, and beginning February 21, 2014 for the purposes of his Title XVI claim. Id.; see also ECF No. 13 at 4. His claims for disability benefits were denied on September 4, 2014. R. 21. Mr. Brinkey then requested a hearing, which was held before Administrative Law Judge (“ALJ”) Debra J. Denney on January 21, 2016. R. 14. The ALJ issued a decision denying benefits on February 25, 2016. R. 14, 18-20, 25-31. The Appeals Council denied Mr. Brinkey's Request for Review on January 31, 2017, rendering the ALJ's determination the final decision of the Commissioner for purposes of judicial review. R. 1-5. Mr. Brinkey filed a timely appeal in this Court.

         B. The ALJ's Decision.

         The ALJ issued an unfavorable decision at step two in the SSA's standard five-step process. First, the ALJ found that Mr. Brinkey had not engaged in substantial gainful activity since his alleged onset date of January 1, 2002. R. 23. At step two, the ALJ found that while Mr. Brinkey's alleged impairments of autism and a learning disability were not medically determinable, Mr. Brinkey had the medically determinable impairments of panic disorder with agoraphobia and dependent personality disorder, but that these impairments were not severe. R. 24. As a result, the ALJ concluded that Mr. Brinkey was not disabled, and she did not proceed to the remaining three steps.


         Mr. Brinkey alleges that the ALJ erred in three ways when she concluded at step two that he did not have a severe impairment. First, he argues that she erred as a matter of law in failing to find that Mr. Brinkey met his de minimis burden at step two; second, he argues that the ALJ impermissibly based her findings on her lay judgment rather than on the judgment of the medical experts; and third, he argues that the ALJ failed to base her findings about the credibility of Mr. Brinkey's and his mother's testimony on substantial evidence. ECF No. 13 at 5. Each argument will be considered in turn.

         A. Mr. Brinkey's De Minimis Burden.

         Mr. Brinkey's threshold argument is that he met the de minimis burden imposed on claimants at step two. At this step in the SSA's sequential process a claimant is required to show that he suffers from a severe impairment or that the combined effect of his impairments is severe. The claimant must demonstrate that his impairment is of “such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, ” regardless of whether that work exists near him or whether he would actually be hired if he applied. 42 U.S.C. § 423(d)(2)(A). “The words of this provision limit the Secretary's authority to grant disability benefits, not to deny them.” Bowen v. Yuckert, 482 U.S. 137, 148 (1987).

         The claimant bears the burden at step two of demonstrating that his impairment(s) is severe because it “significantly limits [his] physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). “The ability to do basic work activities is defined as ‘the abilities and aptitudes necessary to do most jobs.'” Yuckert, 482 U.S. at 141 (quoting 20 C.F.R. §§ 404.1521(b), 416.921(b)). To prevail at step two, a claimant need only make a “de minimis showing” of medical severity, meaning that he shows “that his impairments would have more than a minimal effect on his ability to do basic work activities.” Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988). However, this showing requires demonstrating “more than the mere presence of a condition or ailment.” Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997). If the claimant is unable to make a de minimis showing of severity, “he is not eligible for disability benefits, and the review process ends at step two. See Williams, 844 F.2d at 751.

         “When confronted with a claim of mental impairment, the ALJ is required by regulation to apply a ‘special technique'” to determine the severity of the mental impairment. Grotendorst v. Astrue, 370 F. App'x 879, 882 (10th Cir. 2010) (citing 20 C.F.R. § 404.1520a). First, the ALJ must “evaluate [the claimant's] pertinent symptoms, signs, and laboratory findings to determine whether [the claimant has] a medically determinable mental impairment(s).” 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1).[1] An impairment must be “established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [a claimant's] statement of symptoms.” Id. at §§ 404.1508, 416.908.

         Next, once the ALJ has found a medically determinable impairment, she must rate the degree of functional limitation resulting from the impairment in four broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ's ratings are then used to determine the severity of the mental impairments. Grotendorst, 370 F. App'x at 882. An ALJ's decision must “incorporate the pertinent findings and conclusions based on the technique, ” and must show “the significant history, including examination and laboratory findings, ...

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