United States District Court, D. Colorado
ORDER AFFIRMING THE DENIAL OF BENEFITS
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
matter is before the Court on review of the Social Security
Commissioner's decision denying Plaintiff Akeem Abdullah
Makeen's application for disability insurance benefits.
Jurisdiction is proper pursuant to 42 U.S.C. § 405(g).
Makeen argues that the administrative law judge's
(“ALJ”) determination that he is capable of
performing work that exists in significant numbers is
erroneous. (Doc. # 12.) Because the ALJ's analysis was
supported by substantial evidence and because the ALJ used
the correct legal standards, the Court rejects Mr.
Makeen's arguments and affirms the decision of the
Makeen filed an application for disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C.
§§ 401-34, on June 16, 2014. (Doc. # 9-5 at 155-
He alleged that the onset of his disability was April 30,
2013, and that his ability to work was limited by
“hypertensive cardiovascular disease/hypertension;
seizures/epilepsy; [and] brittle diabetes impairment.”
(Doc. # 9-6 at 182, 190.) Mr. Makeen explained that he
stopped working as a network engineer in April 2013
“[b]ecause of [his] conditions” and because his
contract ended. (Id. at 190.)
Makeen's application for disability insurance benefits
was initially denied on January 13, 2015, by an administrator
at the regional Social Security office in Aurora, Colorado.
(Doc. # 9-4 at 100-02.) The administrator explained that the
evidence showed that Mr. Makeen's diabetes was
“well-controlled with medications, ” his
hypertension was “stable on [his] medications, ”
and his seizures were “improved with medication.”
(Id. at 100.) Mr. Makeen, represented by
non-attorney Carrie Tremblatt, see (id. at
148-50), filed a written request for a hearing before an ALJ
on February 6, 2015. (Id. at 103.)
Rebecca LaRiccia conducted a hearing on September 19, 2016,
in Denver, Colorado. (Doc. # 9-2 at 47-82.) Mr. Makeen, his
representative, and an impartial vocational expert, Jammie
Massey, were present. (Id. at 47.) Mr. Makeen
testified that he ceased working in 2013 because his
“seizures started coming back severely”
“three to four” times a day and that his seizures
presented in three forms: grand mal seizures, petit mal
seizures, and “generalized” seizures.
(Id. at 58-59.) He stated that on an average day, he
made breakfast, did some work for “the board, ”
napped, watched television, and watched his wife make dinner.
(Id. at 69.) When prompted by his representative,
Mr. Makeen explained that computer screens and stress
aggravated his seizures. (Id. at 71-72.) At the end
of the hearing, the ALJ asked the impartial vocational expert
about a hypothetical individual of Mr. Makeen's age,
education, and work experience who was capable of performing
work “at the medium range exertion, ” subject to
some physical limitations, and capable of
“understanding[ing], remember[ing], and carry[ing] out
simple, routine, repetitive tasks that can be learned in 30
days or less with occasional interaction with coworkers,
supervisors, and the general public.” (Id. at
76.) The vocational expert answered that this hypothetical
individual would not be able to perform Mr. Makeen's past
work as a network systems analyst but could perform work as a
sandwich maker, a kitchen helper, or a laundry worker.
(Id. at 76-77.) The vocational expert also explained
that, if the hypothetical individual was to be absent three
times a month, the “level of absenteeism would not be
tolerated in any job, ” and that, if the hypothetical
individual was off task two hours out of the eight-hour
workday, such a restriction “would not allow for
work.” (Id. at 78.)
concluded that Mr. Makeen was not disabled, as defined in the
Social Security Act, and therefore not entitled to disability
insurance benefits in her decision on December 27, 2016.
(Doc. # 9-2 at 23-46.) She determined that Plaintiff had
several severe impairments-“discogenic and degenerative
disc disease (DDD), status post partial laminectomy and cyst
removal; atherosclerosis; kidney disease; a seizure disorder;
hypertension; a major depressive disorder (MDD); and a
personality disorder”-but that these severe
impairments, considered singly and cumulatively, did not meet
or medically equal the severity of one of the listed
impairments in the Social Security Administration's
Listing of Impairments, 20 C.F.R. § Pt. 404, Subpt. P,
App. 1 (2016). (Doc. # 9-2 at 28-29.) With regard to Mr.
Makeen's epilepsy, the ALJ stated that evidence failed to
document the required occurrence of seizures despite
compliance with medication to satisfy the listing at
11.02. (Id. at 30.) As to Mr.
Makeen's depressive and personality disorders, the ALJ
explained that the evidence did not satisfy the paragraph B
criteria of the listings for affective disorders at
12.04 or for personality disorders at 12.08 because Mr.
Makeen had “no more than a mild limitation” in
activities of daily living, had “no more than a
moderate limitation” in social functioning, had
“no more than moderate limitations” in
concentration, persistence, and pace, and had no episodes of
decompensation. (Id. at 30-32.)
next concluded that Mr. Makeen had the following residual
functional capacity (“RFC”):
[T]he claimant has the residual functional capacity to
perform medium work as defined in 20 CFR
404.1567 except maximum lifting of forty (40)
pounds, frequently lifting twenty-five (25) pounds, but
unlimited sit, stand, and walk. Avoid unprotected heights,
ladders, ropes, scaffolds, and hazardous machinery. Can
understand, remember, and carry out simple routine,
repetitive tasks that can be learned in 30 days or less with
occasional interaction with coworkers, supervisors, and the
(Id. at 32.) Finally, based on the vocational
expert's testimony, the ALJ decided that Mr.
was “capable of making a successful adjustment to other
work that exists in significant numbers in the national
economy, ” such as work as a sandwich maker, a kitchen
helper, or a laundry worker. (Id. at 40-41.)
Makeen requested that the Appeals Council review the
ALJ's decision on January 5, 2017. (Doc. # 9-4 at 153.)
The Appeals Council denied Mr. Makeen's request for
review on September 8, 2017, briefly stating that it
“found no reason under [its] rules to review the
[ALJ's] decision.” (Doc. # 9-2 at 1-7.) When the
Appeals Council declined review, the ALJ's decision
became the final decision of the Commissioner. 20 C.F.R.
§ 404.981; see Blea v. Barnhart, 466 F.3d 903,
908 (10th Cir. 2006).
Makeen initiated the instant action on November 7, 2017,
seeking reversal of the ALJ's decision and the award of
disability insurance benefits to him. (Doc. # 1.) After the
Commissioner filed the Administrative Record, see
(Doc. ## 9-9-18), Plaintiff filed his Opening Brief on
February 16, 2018 (Doc. # 12). The Commissioner filed a
Response on March 7, 2018 (Doc. # 13), to which Plaintiff
replied on March 21, 2018 (Doc. # 14.)
STANDARD OF REVIEW
reviewing the Commissioner's decision, the Court is
limited to determining “whether the findings are
supported by substantial evidence and whether the Secretary
applied the correct legal standards.” Pacheco v.
Sullivan, 931 F.2d 695, 696 (10th Cir. 1991); see
also 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . . .”).
First, the Supreme Court has defined “substantial
evidence” as “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Consol. Edison Co. of N.Y. v.
NLRB, 305 U.S. 197, 217 (1938). “Substantial
evidence is more than a scintilla, but less than a
preponderance . . . .” Campbell v. Bowen, 822
F.2d 1518, 1521 (10th Cir. 1987).
reviewing the record to make the substantial evidence
determination, the Court “may not reweigh the evidence
nor substitute [its] judgment for the Secretary's.”
Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir.
1994). In addition, the Court “may not displace the
agency's choice between two fairly conflicting views,
even though the [C]ourt would justifiably have made a
different choice had the matter been before it de
novo.” Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007) (quotation marks and citation omitted).
Also, the Court “defer[s] to the ALJ on matters
involving the credibility of witnesses.” Glass v.
Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). “A
finding of ‘“no substantial evidence” will
be only where there is a “conspicuous absence of
credible choices” or “no contrary medical
evidence.”'” Trimiar v. Sullivan,
966 F.2d 1326, 1329 (10th Cir. 1992) (quoting Hames v.
Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
in addition to the absence of substantial supporting
evidence, “[f]ailure to apply the correct legal
standard or to provide this court with a sufficient basis to
determine that appropriate legal principles have been
followed is grounds for reversal.” Byron v.
Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984); see
also Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th
Cir. 1993). “There are specific rules of law that must
be followed in deciding whether evidence is substantial in
these disability cases.” Frey v. Bowen, 816
F.2d 508, 512 (10th Cir. 1987).
not every error in evaluating evidence or applying the
correct legal standard warrants reversal or remand.
“Courts may not reverse and remand for failure to
comply with a regulation without first considering whether
the error was harmless.” Bornette v. Barnhart,
466 F.Supp.2d 811, 816 (E.D. Tex. 2006); see also Allen
v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004)
(recognizing that the Tenth Circuit has “specifically
applied [the principle of harmless error] in social security
disability cases” and collecting cases). Harmless error
exists where it is “inconceivable” that a
different administrative conclusion would have been reached
absent the error. Frank v. Barnhart, 326 F.3d 618,
622 (5th Cir. 2003).
is defined in the Social Security Act as the “inability
to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment. . .
.” 42 U.S.C. § 423(d)(1)(A). The Act further
An individual shall be 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 work
which exists in the national economy. . . .
42 U.S.C. § 423(d)(2)(A). The claimant bears the burden
of proving that he is disabled. 20 C.F.R. § 404.1512(a);
Wall v. Astrue, 561 F.3d 1048, 1062 (10th Cir.
Commissioner has established a five-step sequential
evaluation process to determine whether a claimant is
disabled. 20 C.F.R. § 416.920(a)(4). The steps of the
evaluation are whether: (1) the claimant is currently
working; (2) the claimant has a severe impairment; (3) the
claimant's impairment meets an impairment listed in
Appendix 1 of the relevant regulation; (4) the impairment
precludes the claimant from doing her past relevant work; and
(5) the impairment precludes the claimant from doing any
work. See 20 C.F.R. §§ 404.1512(g),
404.1560(c); Pisciotta v. Astrue, 500 F.3d 1074,
1076 (10th Cir. 2007). A finding that a claimant is or is not
disabled at any point in the five-step evaluation process is
conclusive and terminates the analysis. Casias v.
Sec'y of Health & Human Serv., 933 F.2d 799, 801
(10th Cir. 1991).
Makeen argues that the ALJ erred in three ways: (1)
“[t]he ALJ failed to properly weigh the medical opinion
evidence and failed to properly determine Mr. Makeen's
physical residual functional capacity;” (2)
“[t]he ALJ failed to properly evaluate Mr. Makeen's
testimony;” and (3) “[t]he ALJ relied on a flawed
hypothetical question to the vocational expert.” (Doc.
# 12 at 12-20.) The Court rejects each argument in turn.
THE ALJ'S WEIGHING OF TREATING SOURCES' MEDICAL
Makeen's application contained medical opinions of two
treating sources. First, Mr. Makeen's treating
neurologist, Dr. Archana Shrestha, M.D., completed a
“seizure questionnaire” for Mr. Makeen's
non-attorney representative on October 15, 2014. (Doc. # 9-8
at 359-64; Doc. # 9-16 at 1001-06.) Dr. Shrestha reported
treating Mr. Makeen once or twice a year since approximately
2000 and diagnosed him with “spells of unclear
etiology” and “left frontal vascular
malformation.” (Doc. # 9-16 at 1001.) She identified as
supporting laboratory and diagnostic test results (1) a
“[b]rain MRI show[ing] the vascular malformation,
stable, ” and (2) an “EEG mildly abornmal with
left hemisphere slowing[, ] likely related to # 1.”
(Id.) Dr. Shrestha speculated that Mr. Makeen
“may have focal onset seizures but this is unknown,
” and he “may also have non-epileptic
spells/events.” (Id.) When asked the average
frequency of Mr. Makeen's seizures and spells, she wrote,
“Multiple spells a day of certain types of spell to
once a week of another type of spell, ” but when asked
for the date of his last three seizures or spells, she wrote,
“Unknown. He did not have any spells/events in the
hospital from [September 2, 2014, to September 5,
2014.]” (Id. at 1002.) Dr. Shrestha declined
to answer multiple questions about Mr. Makeen's
functional abilities and the causes of his seizures, writing
just “Unclear, ” “Unknown, ”
“Possible, ” and “?”. (Id.
at 1004.) For example, when asked the degree to which Mr.
Makeen could tolerate work stress ...