United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. WANG, UNITED STATES MAGISTRATE JUDGE
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],  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.
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.
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].
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].
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].
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].
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].
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].
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].
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. §
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).
The ALJ's Decision
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