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Welton v. Berryhill

United States District Court, D. Colorado

April 25, 2018

MICHELLE WELTON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          SCOTT T. VARHOLAK UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Plaintiff Michelle Welton's Complaint seeking review of the Commissioner of Social Security's decision denying Plaintiff's application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act (“SSA”), 42 U.S.C. §§ 401 et seq., and 1381-83c, respectively. [#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 [##16-17, 20], 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 AFFIRMS the Commissioner's decision.

         I. LEGAL STANDARD

         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.”[1] 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;”[2]
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 his impairments-is sufficient to allow the claimant to perform his past relevant work, if any;
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.

         II. BACKGROUND

         Plaintiff was born in 1964. [AR 71, 157][3] Plaintiff completed high school and two years of college education. [AR 78, 201] Plaintiff is able to communicate in English. [AR 199] On or about April 15, 2014, Plaintiff filed a Title II application for DIB and a Title XVI application for SSI. [AR 71, 157-65] Plaintiff originally claimed a disability onset date of August 30, 1991 [AR 71, 228], but amended that date to November 1, 2003, at the hearing before Administrative Law Judge (“ALJ”) Thomas Inman [AR 11, 31]. Thus Plaintiff was 39 years old at the time of the alleged onset. [AR 18] Plaintiff claims disability based upon the following physical impairments: pelvic pain, bowel problems, digestive issues, and vomiting. [AR 200] Plaintiff worked in a variety of positions for several airlines prior to the alleged disability onset date, including as a customer service agent for Continental Airlines and a customer service supervisor for G.P. Express Airlines. [AR 209, 214] Plaintiff's most recent prior work experience was as a flight attendant for Frontier Airlines from July 1995 through September 2003. [AR 182, 190, 209] Plaintiff attempted to return to work as a gate agent for Skywest in February 2008, but had to quit during training after one to two months, due to her disability. [AR 182]

         A. Medical Background

         Plaintiff experienced an ectopic pregnancy in 1991 and a miscarriage in 1996. [AR 265, 498-99] In approximately 1999, Plaintiff began treatment for chronic pelvic pain. [AR 265] Plaintiff presented to Dr. William Schoolcraft, who assessed Plaintiff for chronic pelvic pain, and noted possible pelvic adhesions and/or endometriosis. [Id.] On October 20, 1999, Dr. Schoolcraft performed a laparoscopy and lysis of adhesions, diagnosing Plaintiff with pelvic pain, pelvic adhesions, and a right tubal obstruction. [AR 267] Dr. Schoolcraft did not observe endometriosis. [AR 268] Plaintiff reported feeling “dramatically better” within a week after the operation, but complained of increasing pelvic pain in the lower right quadrant in November 1999. [AR 262-63] Dr. Schoolcraft noted the “[u]nclear etiology for pain, ” and recommended a gastrointestinal (“GI”) consultation. [AR 262] Afterward, Plaintiff apparently did not present for any further medical appointments until 2002. [AR 260]

         Plaintiff began to see Dr. Arthur Sands in March 2002. [AR 477] Dr. Sands reported that while Plaintiff had “marked” lower right quadrant chronic pain, it was “well controlled” with the medication Fiorinal. [Id.] The following month, Plaintiff reported to Dr. Sands that she had generally “been doing okay.” [AR 476] Plaintiff was resistant to surgery despite some continued pain, but Dr. Sands encouraged her to give “strong consideration” to surgical options. [Id.] Plaintiff reported continued lower abdominal pain in May 2002, but her current medications were controlling the pain. [AR 475] Plaintiff was scheduled for an oophorectomy to remove the ovaries on the right side, but declined to go through with the procedure. [Id.] Throughout the remainder of 2002, Plaintiff reported that she was doing well and that the pain was much better, and Dr. Sands observed that Plaintiff's multiple problems were stable. [AR 318-19, 472]

         In early 2003, Plaintiff presented to the emergency room for chronic abdominal pain. [AR 315] She also requested paperwork for a leave of absence due to the pain from her position at Frontier Airlines, from her provider, Physician Assistant (“PA”) Cathy Robinson. [Id.] Plaintiff met with Dr. Rand Compton for a gastroenterology consultation in April 2003. [AR 281-82] Plaintiff reported to Dr. Compton that she “had severe problems with recurrent nausea and vomiting and periumbilical pain” over the last two years, though her abdominal pain was controlled with Fiorinal and codeine. [AR 281] At that time, Plaintiff was on partial medical leave from her work as a flight attendant because of her pain and was “under significant stress because of her job and illness.” [Id.] Dr. Compton performed an upper GI endoscopy on April 22, 2003, finding mild inflammation in the stomach and the first part of the duodenum, and tiny incidental hiatus hernia. [AR 283-84; see also AR 339-40, 492-93] Dr. Compton also performed a small bowel biopsy which revealed “no significant histopathologic features.” [AR 285; see also AR 489] In the months following those procedures through 2004, Plaintiff's providers reported that she was doing okay and feeling fine, other than the lower abdominal pain, which Plaintiff often described as stable with medications. [AR 309-11, 314] Plaintiff also reported that she was swimming for exercise. [AR 312]

         Plaintiff continued to report abdominal pain in 2005 through 2007, but otherwise noted that she felt fine-even at times stating she felt great-that the pain was not getting worse, and that she gained significant relief from her pain medication. [AR 293-94, 296, 298-300, 305-06] Similarly, in January 2008, Plaintiff noted that although her abdominal pain was severe if she did not take her medications, and that she had burned herself using a heating pad on her abdomen, she otherwise felt “great.” [AR 327] In April 2008, Plaintiff complained of a possible ovarian cyst, abdominal pain, and loss of appetite. [AR 326] Cathy Robinson explained that the symptoms could be a result of appendicitis and advised Plaintiff to go to the emergency room if the pain got worse, but Plaintiff ultimately refused to go to the hospital. [Id.] A few months later, Plaintiff reported that she was “happy in her life, ” that her abdominal pain was “controlled with her multiple medications, ” and that she had “no concerns” at her appointment. [AR 324] Similarly, throughout 2009 to 2011, Plaintiff's providers noted that she was “doing fine, ” had “no complaints, ” and that her medications were “keeping her abdominal pain under control.” [AR 322; see also AR 453-55] Slightly complicating Plaintiff's medical situation, however, was the fact that she did not have health insurance. [AR 320, 455, 460-61]

         The medical records do not include any documentation from 2012. In 2013, Plaintiff complained of a possible urinary tract infection, nausea, and vomiting, in addition to her chronic abdominal pain. [AR 357, 361-69] Plaintiff began to see PA Stephanie Keene, and reported exercising through aerobics and cardio, strength, and weight training more than three times per week. [See, e.g., AR 366, 368] Keene explained that there were limited options in treating Plaintiff's nausea and pain, as Plaintiff could not afford to see a gynecologist for definitive surgery, or a pain management specialist. [AR 367] Keene also suspected that Plaintiff's urinary symptoms were a result of taking consistent high doses of certain medications. [Id.; see also AR 361-62] Plaintiff reported particularly severe vomiting in June 2013, but refused to go to the emergency room. [AR 362] She also complained that she had experienced several months of urinary retention and increased pelvic pain, but did not schedule an appointment with her providers. [AR 361-62] In late 2013 and early 2014, Keene reported that Plaintiff was under a lot of stress due to her mother's cancer diagnosis, leading to higher pain levels. [AR 350, 354] Plaintiff reported irritable bowel syndrome (“IBS”), nausea, and anxiety in November 2013 [AR 354-55], but her symptoms had largely improved or resolved by early 2014 [AR 350].

         During appointments with Dr. Kevin Boyle throughout 2015, Plaintiff's conditions, particularly her abdominal pain, were reportedly stable on her current medications. [AR 392, 406, 409, 411] Specifically, Dr. Boyle noted that Plaintiff's chronic pain was “[c]ontrol[led] for the most part with current medication” [AR 409], and that Plaintiff had “noted quite a bit of improvement in the chronic pain” [AR 411]. Nevertheless, Dr. Boyle wrote letters stating that Plaintiff was unable to work in any capacity due to her chronic abdominal pain, and also certifying that Plaintiff had an IBS diagnosis, causing frequent vomiting. [AR 378-79, 409, 411, 413]

         Throughout the course of her treatment, Plaintiff requested prescription refills before they were due on several occasions, including in 2002 [AR 319, 472], 2003 [AR 315-16], 2006 [AR 299], 2007 [AR 294], 2008 [AR 324], and 2010 [AR 459], and at times claiming that he prescriptions had been stolen [AR 294, 319, 322, 470, 472]. Relatedly, Plaintiff's providers have noted her addiction to pain medication, advised Plaintiff to decrease dosages or stop use altogether, or have refused to continue refilling, or allowing early refills of, Plaintiff's prescriptions. [AR 325, 381, 470, 472] For example, In September 2009, after receiving a phone call, purportedly from Plaintiff's sister, requesting an early medication refill, Robinson informed Plaintiff that the providers “had decided to discontinue prescribing her pain medications, ” and were referring her to a pain doctor in Denver. [AR 470] However, Plaintiff has felt the need to continue the medications due to her history of chronic abdominal pain. [AR 325]

         B. Procedural History

         Plaintiff's applications for DIB and SSI were initially denied on June 12, 2014. [AR 90, 94] On August 14, 2014, Plaintiff filed a request for a hearing before an ALJ. [AR 97] An initial hearing was conducted before ALJ Thomas Inman on December 16, 2015. [AR 60-68] The hearing was postponed in order to give Plaintiff an opportunity to retain counsel. [AR 67-68] A second hearing was held before ALJ Inman on March 3, 2016, at which Plaintiff and vocational expert (“VE”) Ashley Bryars both testified. [AR 25-59] Plaintiff was represented by attorney Brandon Selinsky. [Id.; see also AR 148]

         On April 14, 2016, the ALJ issued a decision denying Plaintiff benefits. [AR 11-20] Plaintiff timely requested a review of that decision by the Appeals Council [AR 6], which denied her request for review on March 16, 2017 [AR 1-3]. Plaintiff timely filed an appeal with this Court on May 15, 2017. [#1] Because the Appeals Council denied Plaintiff's appeal, the ALJ's decision is the final decision of the Commissioner for purposes of this appeal. See 20 C.F.R. §§ 404.981, 416.1481, 422.210.

         C. The ALJ's Decision

         The ALJ denied Plaintiff's applications for DIB and SSI after evaluating the evidence pursuant to the five-step sequential evaluation process. [AR 11-20] At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since November 1, 2003, the alleged onset date. [AR 13] At step two, the ALJ found that Plaintiff had the following severe impairments: chronic abdominal pain and IBS. [Id.] At step three, the ALJ concluded that Plaintiff does not have an impairment or combination of impairments that meets or medically exceeds the severity of one of the listed impairments in the appendix of the regulations. [AR 15]

         Following step three, the ALJ determined that Plaintiff retained the RFC to perform “light work” as defined in 20 C.F.R. §§ 404.1567(b) ...


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