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Makeen v. Berryhill

United States District Court, D. Colorado

July 31, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This 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).

         Mr. 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 Commissioner.

         I. BACKGROUND

         Mr. 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- 56.)[1] 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.)

         Mr. 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.)

         ALJ 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.)

         The ALJ 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).[2] (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.[3] (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[4] 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.)

         The ALJ 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[5] 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 public.

(Id. at 32.) Finally, based on the vocational expert's testimony, the ALJ decided that Mr.

         Makeen 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.)

         Mr. 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).

         Mr. 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.)


         When 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).

         In 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)).

         Second, 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).

         However, 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).

         III. LAW

         “Disability” 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 provides that

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. 2009).

         The 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).

         IV. ANALYSIS

         Mr. 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.


         Mr. 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.)[6] 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 ...

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