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Ortiz v. Commissioner, Social Security Administration

United States District Court, D. Colorado

May 1, 2018




         This civil action arises under Title XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 1381-83(c) for review of the Commissioner of Social Security's (“Commissioner” or “Defendant”) final decision denying Plaintiff April Ortiz's (“Plaintiff” or “Ms. Ortiz”) application for Supplemental Security Income (“SSI”). Pursuant to the Order of Reassignment dated December 19, 2017 [#24], [1] this civil action is before this Magistrate Judge for a decision on the merits. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73; D.C.COLO.LCivR 72.2. Upon review of the Parties' briefing, the entire case file, the Administrative Record, and the applicable case law, this court respectfully AFFRIMS the Commissioner's decision for the reasons stated herein.


         This case arises from Plaintiff's application for SSI protectively filed on December 2, 2013. [#11-2 at 20; #11-3 at 110-11; #11-5 at 195]. Ms. Ortiz completed the 9th grade, took special education classes while in school, and never received her General Education Diploma (“GED”). See [#11-2 at 24, 43; #11-3 at 114]. Plaintiff alleges she became disabled on October 15, 2005, due to hearing loss, a learning disability, and a speech problem. See [#11-3 at 111]. Ms. Ortiz was twenty-five on the alleged onset date of her claimed disability.

         The Colorado Department of Human Services denied Plaintiff's application administratively. See [#11-2 at 20; #11-3 at 110]. Ms. Ortiz timely filed a request for a hearing before an Administrative Law Judge (“ALJ”) on May 19, 2014. See [#11-4 at 126]. ALJ Patricia E. Hartman (the “ALJ”) held a hearing on January 12, 2016. [#11-2 at 20, 38]. At the hearing, Ms. Ortiz proceeded through counsel, and the ALJ received testimony from Plaintiff and Vocational Expert Cynthia Bartmann (the “VE”). See [#11-2 at 20, 39].

         Plaintiff testified at the hearing that she currently lives alone in a public housing apartment in Fort Collins, Colorado. [Id. at 42]. She does not own a vehicle, and uses public transportation to get around. [Id.]. During the day, Ms. Ortiz typically stays home, watches television, walks her dogs, and takes 1 to 2 naps; she continued that she also has trouble falling asleep at night. [Id. at 49]. As to her daily activities, Ms. Ortiz testified that she cooks mostly microwavable meals, goes grocery shopping once or twice a month, washes dishes and laundry, vacuums, takes out the garbage, goes to the movies on occasion, eats out once or twice a month, and walks and cares for her three dogs. [Id. at 50-52]. However, Ms. Ortiz explained that she takes several 5 to 10 minute breaks while doing household chores. [Id. at 52].

         Regarding her physical ailments, Plaintiff stated she experiences pain in her ankles, knees, and wrists with the pain shooting from her wrist to her hands, making it difficult for her to grasp or hold things or brush her teeth, but she also testified that she could still lift items weighing 70 to 80 pounds before her wrists hurt. [Id. at 45, 49]. Plaintiff testified that her wrist pain is usually a 1-2 out of 10 in intensity, but reaches 10 out of 10 once or twice a week. [Id. at 53-54]. She testified to taking ibuprofen when needed, and that a doctor prescribed physical therapy for her wrists, but that she forgot to follow through with it. [Id. at 45-46]. Ms. Ortiz also testified that she was hospitalized somewhat recently for a “seriously bad earache.” [Id. at 46]. She was prescribed hearing aids for her hearing issues, which helped “so-so, ” but she has since lost her hearing aids and cannot afford new ones. [Id. at 47]. Without her hearing aids Plaintiff stated that she has difficulty hearing people, or the doorbell, or the phone. [Id. at 53]. Plaintiff attributes her hearing loss to her Turner's syndrome that she was born with. [Id. at 47]. Ms. Ortiz explained that her physical ailments prohibit her from standing or sitting for more than an hour, and that she can only walk a mile. [Id. at 47-48].

         Ms. Ortiz also explained that she suffers from depression and anxiety, which cause her to seclude herself from others in her room, but that she does not take medication or attend therapy. [Id. at 46]. She also testified to memory issues that cause her to constantly forget appointments and make it difficult to pay attention for more than a half-hour. [Id. at 48-49, 55]. Her concentration issues also make it difficult for her to follow recipes or instructions. [Id. at 54].

         Plaintiff testified that she has not worked in the previous two years; before then she worked as a housekeeper for America Inn as well as for Poudre Valley Hospital. See [id. at 43- 44]. Ms. Ortiz stated that she quit working for America Inn because it was too far from her home, and that she was terminated from Poudre Valley Hospital due to tardiness despite explaining that her poor hearing caused her to miss alarms. [Id.]. When asked what prohibits her from working currently, Ms. Ortiz responded that her forgetfulness and pain in her ankles, wrists, and knees were the reasons. [Id. at 44-45].

         A VE also testified at the hearing. The VE first summarized Plaintiff's past relevant work as a cleaner/housekeeper, a specific vocational preparation (“SVP”) level 2 light exertion job, and a housekeeper/hospital, a SVP level 2 medium exertion job. See [#11-2 at 56-57]. The VE was then to consider an individual who could perform work at all exertional levels, limited to simple, routine, and repetitive work that was goal-oriented at a maximum SVP level 2, and could not (1) climb ladders or scaffolds, (2) work in an environment with “loud auditory warning[] signals, ” (3) work at unprotected heights or around dangerous machinery, or (4) perform at a fast production rate. [Id. at 57]. Based on this hypothetical, the VE testified that such an individual could perform both of Plaintiff's previous jobs, as well as jobs as a laundry worker, SVP level 2 medium exertion job, a mail clerk, SVP level 2 light exertion job, and an addresser, SVP level 2 sedentary job. [Id. at 57-58]. The VE proclaimed that her testimony was consistent with the Dictionary of Occupational Titles. [Id. at 58].

         In response to questioning from Ms. Ortiz's counsel, the VE testified that someone who required frequent breaks to lie down, had an inability to understand or carry out simple or complex instructions, and would be off-task 40-50% of the time could not perform gainful employment. [Id. at 59-62]. But the VE did testify that someone with limited social functioning could still perform the jobs identified in response to the ALJ's questioning. [Id. at 61].

         On March 14, 2016, the ALJ issued a decision finding Ms. Ortiz not disabled under the Act. [#11-2 at 31]. Plaintiff requested Appeals Council review of the ALJ's decision [id. at 14- 16], which the Appeals Council denied, rendering the ALJ's decision the final decision of the Commissioner [id. at 1-5]. Plaintiff sought judicial review of the Commissioner's final decision in the United States District Court for the District of Colorado on June 9, 2017, invoking this court's jurisdiction to review the Commissioner's final decision under 42 U.S.C. § 1383(c)(3).


         In reviewing the Commissioner's final decision, the court is limited to determining whether the decision adheres to applicable legal standards and is supported by substantial evidence in the record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation omitted); cf. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993) (“[I]f the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence.” (internal citation omitted)). The court may not reverse an ALJ simply because she may have reached a different result based on the record; the question instead is whether there is substantial evidence showing that the ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). “Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (internal citation omitted). But “[e]vidence 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) (internal citation omitted). The court may not “reweigh the evidence or retry the case, ” but must “meticulously examine 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.” Flaherty, 515 F.3d at 1070 (internal citation omitted).


         I. The ALJ's Decision

         SSI is available to an individual who is financially eligible, files an application for SSI, and is disabled as defined in the Act. 42 U.S.C. § 1382. An individual is determined to be under a disability only if his “physical or mental impairment or impairments are 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. . . .” 42 U.S.C. § 423(d)(2)(A). The ...

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