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Powell v. Berryhill

United States District Court, D. Colorado

March 27, 2018



          Kathleen M Tafoya United States Magistrate Judge

         This matter comes before the court on review of the Commissioner's denial of Plaintiff Kent Luther Powell's application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. (See generally Doc. No. 11, Social Security Administrative Record [“AR”].)

         Plaintiff filed his opening brief on May 22, 2017 (Doc. No. 15 [“Opening Br.”]). Defendant filed his response on June 12, 2017 (Doc. No. 16 [“Resp.”]), and a reply was filed on June 26, 2017. (Doc. No. 17 [“Reply”].) Jurisdiction is proper under 42 U.S.C. § 405(g).


         In determining disability, the ALJ used the five-step sequential evaluation process consistent with the Social Security Administration's (“SSA”) regulations.[1] After reviewing the record, the ALJ found that Plaintiff was not disabled because he was capable of performing his past relevant work. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since September 9, 2014. R.24. At step two, he found that Plaintiff has the following severe impairments: chronic myofascial pain; obstructive sleep apnea; osteopenia; degenerative disc disease; cervical spondylosis; thoracic vertebral fracture; and obesity. (AR. 24.) Critically, however, the ALJ considered Plaintiff's mental impairments of anxiety and depression as not severe. (Id.) At step three, the ALJ found that Plaintiff does not meet or equal any listing. (AR 26.) In reaching step four, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform light work. (AR 27.) This finding of light work was consistent with Plaintiff's treating physician, Paul Mackell, M.D., whom the ALJ afforded “great weight.” (AR 31.) The ALJ further found that Plaintiff can only occasionally climb ladders, ropes, or scaffolds; that he can only occasionally stoop or crawl; that he can only frequently climb stairs and ramps, kneel, and crouch; and that he can have no more than occasional exposure to extreme cold and hazards, such as unprotected heights, moving mechanical parts, and operating motor vehicles. (AR 27.)

         At step four, the ALJ found that Plaintiff could perform his past relevant work. (AR 33.) At step five, the ALJ found that Plaintiff could also do work available in the U.S. economy, with small product clerk, cashier, and mailroom clerk as three examples. (AR 34.)


         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.

         Substantial evidence means “more than a mere scintilla, ” or such evidence as a “reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401. Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

         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). And as the Tenth Circuit observed in Baca v. Dep't of Health & Human Servs., 5 F.3d 476, 480 (10th Cir. 1993), the ALJ 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.


         Plaintiff raises several issues for consideration-including (1) the ALJ's analysis at step three as to whether Plaintiff's impairments (sleep apnea and obesity) met the required Listings; (2) the ALJ's RFC analysis at step four; and (3) the ALJ's analysis of evidence regarding depression. The court rejects each of these arguments.

         To use a broad brush, Plaintiff's brief draws a long bow in criticizing the ALJ's decision. Many of his arguments are not pitched at the requisite level of specificity given the thoroughness of the ALJ's decision-a decision that not only cites to relevant Social Security Rulings (“SSRs”), but provides a level of reasoning that reinforces the ALJ's non-disability findings under the meaning of the statute.

         A. The ALJ Did Not Err in Analyzing the SSA's Listings as to ...

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