United States District Court, D. Colorado
MARY ANN R. MAY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
T. BABCOCK, JUDGE.
Mary Ann R. May, appeals from the Social Security
Administration (“SSA”) Commissioner's final
decision denying her application for disability insurance
benefits (“DIB”), filed pursuant to Title II of
the Social Security Act, 42 U.S.C. §§ 401-433.
Jurisdiction is proper under 42 U.S.C. § 405(g). Oral
argument would not materially assist me in the determination
of this appeal.
consideration of the parties' briefs, as well as the
administrative record, I REVERSE and REMAND the
Commissioner's final order for further proceedings.
Statement of the Case
is a 65 year-old woman who has worked mainly in the nonprofit
sector. [Administrative Record (“AR”) 123, 167]
She seeks judicial review of SSA's decision denying her
application for DIB. ECF No. 1. Plaintiff filed her
application on October 29, 2014 alleging that her disability
began on November 11, 2013. [AR 123, 125]
application was initially denied on February 11, 2015. [AR
60-66] The Administrative Law Judge (“ALJ”)
conducted an evidentiary hearing on October 12, 2016 and
issued a written ruling on February 7, 2017. [AR 12-58] In
that ruling, the ALJ denied Plaintiff's application on
the basis that she was not disabled because, considering her
age, education, and work experience, she had the residual
functional capacity to perform past relevant work. [AR 12-25]
The SSA Appeals Council subsequently denied Plaintiff's
administrative request for review of the ALJ's
determination, making SSA's denial final for the purpose
of judicial review. [AR 1-3]; see 20 C.F.R.
§404.981. Plaintiff timely filed her Complaint with this
court seeking review of SSA's final decision.
SSA's Five-Step Process for Determining
claimant is “disabled” under Title II of the
Social Security Act if she is unable 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.” 42 U.S.C. § 423(d)(1)(A); see Bowen
v. Yuckert, 482 U.S. 137, 140 (1987). SSA has
established a five-step sequential evaluation for determining
whether a claimant is disabled and thus entitled to benefits.
20 C.F.R. § 404.1520.
one, SSA asks whether the claimant is presently engaged in
“substantial gainful activity.” If she is,
benefits are denied and the inquiry stops. 20 C.F.R. §
404.1520(b). At step two, SSA asks whether the claimant has a
“severe impairment”-that is, an impairment or
combination of impairments that “significantly limits
[her] physical or mental ability to do basic work
activities.” 20 C.F.R. § 404.1520(c). If she does
not, benefits are denied and the inquiry stops. If she does,
SSA moves on to step three, where it determines whether the
claimant's impairments “meet or equal” one of
the “listed impairments”-impairments so severe
that SSA has determined that a claimant who has them is
conclusively disabled without regard to the claimant's
age, education, or work experience. 20 C.F.R. §
404.1520(d). If not, SSA goes to step four.
four, SSA determines the claimant's residual functional
capacity (“RFC”)-that is, what she is still able
to do despite her impairments-and asks whether the claimant
can do any of her “past relevant work” given that
RFC. 20 C.F.R. § 404.1520(e). If not, SSA goes to the
fifth and final step, where it has the burden of showing that
the claimant's RFC allows her to do other work in the
national economy in view of her age, education, and work
experience. 20 C.F.R. § 404.1520(g).
contrast with step five, the claimant has “the burden
of establishing a prima facie case of disability at steps one
through four.” Doyal v. Barnhart, 331 F.3d
758, 760 (10th Cir. 2003).
Standard of Review
review concerns only whether SSA's factual findings are
supported by substantial evidence and whether the correct
legal standards were applied. Hamlin v. Barnhart,
365 F.3d 1208, 1214 (10th Cir. 2004). Reversal may be
appropriate when SSA either applies an incorrect legal
standard or fails to demonstrate reliance on the correct
legal standards. Id. I must “determine whether
the findings of fact . . . are based upon substantial
evidence, and inferences reasonably drawn therefrom. If they
are so supported, they are conclusive upon the reviewing
court and may not be disturbed.” Trujill v.
Richardson, 429 F.2d 1149, 1150 (10th Cir. 1970).
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Hamlin
v. Barnhart, 365 F.3d at 1214. A conclusion “is
not based on substantial evidence if it is overwhelmed by
other evidence in the record or if there is a mere scintilla
of evidence supporting it.” Id. The record
must demonstrate that the ALJ considered all of the evidence,
but an ALJ is not required to discuss every piece of
evidence. Clifton v. Chater, 79 F.3d 1007, 1009-10
(10th Cir. 1996). I examine the record as a whole, but may
not reweigh the evidence or substitute my judgment for that
of the ALJ. Hamlin v. Barnhart, 365 F.3d at 1214.
The ALJ's Ruling
ruling, the ALJ followed the five-step analysis outlined
above. The ALJ concluded under the first step that Plaintiff
had not engaged in substantial gainful activity since her
alleged onset date. [AR 17] Under step two, the ALJ
determined that Plaintiff had the “following severe
combination of impairments: status post breast cancer and
diabetes mellitus.” [Id.]
concluded under step three that the enumerated severe
impairments did not meet or medically equal an impairment in
20 C.F.R., Pt. 404, Subpt. P, App. 1. [AR 17-19] The ALJ
found that Plaintiff had the RFC to perform light work except
that she is limited “with occasional posturals, except
no crawling or climbing of ladders, ropes, or scaffolds; and
no exposure to hazards such as unprotected heights and moving
mechanical parts; also no concentrated exposure to extreme
heat, extreme cold, wetness, humidity and vibration.”
step four, the ALJ found that Plaintiff was able to perform
her past relevant work of volunteer services coordinator,
fundraiser, and grant coordinator. [AR 25] Thus, the ALJ
concluded that Plaintiff is not disabled. [AR 25-26]
Issues on Appeal
is an initial issue concerning whether Plaintiff is limited
to light work and whether she is unable to perform work on a
regular and continuing basis. Additionally, in appealing the
ALJ's decision, Plaintiff argues that the ALJ erred by:
(1) not giving proper weight to the opinions of Gordon
Ehlers, M.D., Marsha Evans, M.A., L.P.C., and Gayle Frommelt,
Ph.D.; (2) failing to consider the effects of Plaintiff's
mental health impairments when formulating her RFC; (3)
improperly determining Plaintiff's credibility; and (4)
failing to sufficiently justify his rejection of a statement
from a third-party witness.
The ALJ's analysis of Plaintiff's limitation to
unskilled work or “Regular and Continuing
makes two general arguments: (1) that she is “limited
to no more than sedentary or light, unskilled work, and is
disabled pursuant to Medical Vocational Disability Rule
201.06 or 202.06 (20 C.F.R. §404, Subpart 1, Appendix
2);” and (2) “she is unable to perform work on a
regular and continuing basis and is therefore disabled under
the provisions of the Social Security Ruling 96-8p . . .
.” ECF No. 16 at 19.
argues that since the ALJ determined that Plaintiff could
perform light work, “the only point of contention in
this case is Plaintiff's argument that the ALJ should
have, but did not include a limitation to unskilled
work.” Def.'s Resp., ECF No. 17 at 8-9. Defendant
then shapes its argument under the guise of whether the ALJ
was correct in not including a limitation to unskilled work
in Plaintiff's RFC. Id. at 9-24.
Reply, Plaintiff contends that Defendant misinterprets her
argument and that “she has argued that either a
limitation to unskilled work, or a limitation to less than
‘regular and continuing' employment requires a
finding of disability in her case.” Pl.'s Reply,
ECF No. 20 at 3. Plaintiff continues that no competitive work
would be available if certain hypotheticals presented to the
VE were established to be present “regardless of skill
level.” Id. Plaintiff argues that the
hypotheticals presented were indeed established by Dr.
Ehlers' opinion, and as such, the ALJ did not reasonably
explain why he rejected those opinions. Id. at 8-9;
see ECF No. 16 at 21.
Plaintiff clarifies that if the ALJ properly formulated the
RFC with Dr. Ehlers' opinions, under SSR 96-8p Plaintiff
could not work a regular and continuing work schedule and
should be found disabled regardless of her ability to perform
skilled work. Id. at 4.
partially agree with Plaintiff concerning this distinction.
The parties agree that part of what is at dispute is whether
Plaintiff can perform only unskilled work. ECF Nos. 17 at 8-9
and 20 at 4. That analysis is contained infra.
Plaintiff also claims in her Opening Brief that “she is
unable to perform work on a regular and continuing basis and
is therefore disabled under the provisions of Social Security
Ruling 96-8p . . . .” ECF No. 16 at 19.
96-8p is a clarification of SSA's policies regarding the
assessment of a claimant's RFC. SSR 96-8p, 1996 WL
374184, at *1 (Jul. 2, 1996) (“SSR 96-8p”). SSR
96-8p reads that “[o]rdinarily, RFC is an assessment of
an individual's ability to do sustained work-related
physical and mental activities in a work setting on a regular
and continuing basis. A ‘regular ...