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May v. Berryhill

United States District Court, D. Colorado

August 22, 2018

MARY ANN R. MAY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          LEWIS T. BABCOCK, JUDGE.

         Plaintiff, 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.

         After consideration of the parties' briefs, as well as the administrative record, I REVERSE and REMAND the Commissioner's final order for further proceedings.

         I. Statement of the Case

         Plaintiff 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]

         The 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.

         II. Law

         A. SSA's Five-Step Process for Determining Disability

         A 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.

         At step 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.

         At step 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).

         In 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).

         B. Standard of Review

         My 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).

         “Substantial 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.

         III. The ALJ's Ruling

         In his 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.]

         The ALJ 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.” [AR 19]

         Under 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]

         IV. Issues on Appeal

         There 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.

         A. The ALJ's analysis of Plaintiff's limitation to unskilled work or “Regular and Continuing Employment”

         Plaintiff 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.

         Defendant 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.

         In her 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.

         Additionally, 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.

         I 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.

         SSR 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 ...


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