United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Nina
Y. Wang, United States Magistrate Judge
Magistrate
Judge Nina Y. Wang This civil action arises under Title II of
the Social Security Act (“Act”), 42 U.S.C. §
401-33, for review of the Commissioner of the Social Security
Administration's (“Commissioner” or
“Defendant”) final decision denying Plaintiff
Allison Papesh's (“Plaintiff” or “Ms.
Papesh”) application for Disability Insurance Benefits
(“DIB”). Pursuant to the Parties' consent
[#13], this civil action was referred to this Magistrate
Judge for a decision on the merits. See [#21]; 28
U.S.C. § 636(c); Fed.R.Civ.P. 73; D.C.COLO.LCivR 72.2.
After carefully considering the Parties' briefing, the
entire case file, the Administrative Record, and the
applicable case law, I respectfully AFFIRM
the Commissioner's decision.
BACKGROUND
This
case arises from Plaintiff's application for DIB filed on
or about August 10, 2015. [#11-2 at 11;[1] #11-3 at 58, 59].
Ms. Papesh graduated from high school, completed two years of
college, and worked as a restaurant and cocktail server, a
bartender, a receptionist, a sales representative, a cheese
supervisor, and a customer service representative.
See [#11-2 at 35- 36; #11-9 at 206]. Plaintiff
alleges she became disabled on January 1, 2014, later amended
to March 15, 2015, see [#11-2 at 33; #11-9 at 201],
due to Interstitial Cystitis (“IC”)[2] and major anxiety
disorder, see [#11-9 at 205]. Ms. Papesh was
twenty-nine years old at the date of onset of her claimed
disability.
The
Social Security Administration denied Plaintiff's
application administratively on or about January 5, 2016.
See [#11-3 at 58; #11-4 at 73-75]. Ms. Papesh filed
a request for a hearing before an Administrative Law Judge
(“ALJ”), see [#11-4 at 79], as well as a
request for a determination on the record, see
[#11-5; #11-6]. ALJ Jennifer B. Millington (the
“ALJ”) convened a hearing on June 5, 2017, at
which attorney William Allison represented Plaintiff, and the
ALJ received testimony from the Plaintiff and Vocational
Expert Martin Rauer (the “VE”). See
[#11-2 at 11].
At the
hearing, Plaintiff testified that her IC kept her from
working at present. [#11-2 at 36, 42-44]. She attested that
she was diagnosed with the disease at four years old, but
without much knowledge of the disease or health insurance for
much of her twenties, her IC has “spawned into a lot of
different ailments and turned into debilitating pain.”
[Id. at 36-37, 44]. Ms. Papesh explained that she
received treatments 3 days per week for her IC, and that her
last employer could not accommodate that amount of time off
each week. [Id. at 37]. She continued that she began
administering the treatment (bladder catheterizations) at
home, and had done so for roughly a year. [Id. at
37-38]. But she testified that even home administration could
take approximately 3 hours, given its difficulty and that she
must lie down afterwards for 45 minutes. [Id. at
38].
Regarding
her additional physical ailments, Ms. Papesh testified to
“full body pain everywhere” due to her
fibromyalgia, and that her IC causes her to experience
frequent urination-up to 3 to 4 times per hour and as many as
16 times throughout the night. [Id. at 38-39]. This
in turn causes sleep disturbance, requiring Ms. Papesh to lie
down nearly every day to catch up on sleep. [Id. at
39, 44-45]. Ms. Papesh continued that her chronic fatigue
makes routine hygienic tasks more difficult and longer to
complete; that she can drive only short distances; that her
medication causes side effects of chronic nauseous and
frequent vomiting and diarrhea; and that walking, going to
the grocery store, sitting, and standing exacerbate her
diffuse body pain. [Id. at 40, 45-47]. As to her
mental impairments, Plaintiff testified to having problems
with depression because she can no longer work and has
difficulty maintaining a social life, this in addition to
issues with anxiety because she fears that she may visit a
place with no restrooms. [Id. at 41].
The VE
also testified at the hearing. The VE first summarized Ms.
Papesh's relevant past work experience to include: a
hostess, specific vocational preparation (“SVP”)
level 3, light exertion; a waitress, SVP level 3, light
exertion; a front desk clerk, SVP level 4, light exertion;
receptionist, SVP level 4, sedentary exertion but light as
described by Plaintiff; a bartender, SVP level 3, light
exertion; a check room attendant, SVP level 2, light
exertion; a cashier II, SVP level 2, light exertion but
medium as described by Plaintiff; and a cocktail waitress,
SVP level 3, light exertion. See [#11-2 at 53-54].
The VE
then considered the work an individual could perform with
varying degrees of restrictions. First, the VE testified that
an individual who could perform medium exertion work, could
only frequently climb, balance, stoop, kneel, crouch, and
crawl, and could not be exposed to heights or heavy machinery
could perform all of Ms. Papesh's past relevant work.
[Id. at 54-55]. Second, if this same individual was
limited to light exertion work, the VE testified that such an
individual could perform work as a small product assembler, a
cafeteria attendant, and as a toll collector-each a SVP level
2. [Id. at 55]. Third, if this same individual
“needed, in addition to regular breaks, two additional
breaks per hour of three to four minutes, ” the VE
testified, “you're fairly close to a window of
opportunity with most employment situations in the unskilled
arena. Three minutes is right at the window. Four minutes
twice per hour would be excessive and would not be consistent
with competitive employment at the unskilled level, in my
opinion.” [Id. at 56]. Finally, when asked by
Ms. Papesh's attorney if that same individual also had to
miss “more than two days per month on average, ”
the VE testified that such an individual would not be
employable. [Id.].
On June
30, 2017, the ALJ issued a decision finding Ms. Papesh not
disabled under the Act. [#11-2 at 21]. Plaintiff requested
Appeals Council review of the ALJ's decision, which the
Appeals Council denied, rendering the ALJ's decision the
final decision of the Commissioner. [Id. at 1-3].
Plaintiff sought judicial review of the Commissioner's
final decision in the United States District Court for the
District of Colorado on November 1, 2017, invoking this
court's jurisdiction to review the Commissioner's
final decision under 42 U.S.C. § 1383(c)(3).
STANDARD
OF REVIEW
In
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 justifying
the ALJ's 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).
ANALYSIS
I.
The ALJ's Decision
An
individual is eligible for DIB benefits under the Act if she
is insured, has not attained retirement age, has filed an
application for DIB, and is under a disability as defined in
the Act. 42 U.S.C. § 423(a)(1). 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 disabling impairment must
last, or be expected to last, for at least 12 consecutive
months. See Barnhart v. Walton, 535 U.S. 212, 214-15
(2002). Additionally, the claimant must prove she was
disabled prior to her date last insured. Flaherty,
515 F.3d at 1069.
The
Commissioner has developed a five-step evaluation process for
determining whether a claimant is disabled under the Act. 20
C.F.R. § 404.1520(a)(4)(v). See also Williams v.
Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (describing
the five steps in detail). “If a determination can be
made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not
necessary.” Williams, 844 F.2d at 750. Step
one determines whether the claimant is engaged in substantial
gainful activity; if so, disability benefits are denied.
Id. Step two considers “whether the claimant
has a medically severe impairment or combination of
impairments, ” as governed by the Secretary's
severity regulations. Id.; see also 20
C.F.R. § 404.1520(e). If the claimant is unable to show
that his impairments would have more than a minimal effect on
his ability to do basic work activities, he is not eligible
for disability benefits. If, however, the claimant presents
medical evidence and makes the de minimis showing of
medical severity, the decisionmaker proceeds to step three.
Williams, 844 F.2d at 750. Step three
“determines whether the impairment is equivalent to one
of a number of listed impairments that the Secretary
acknowledges are so severe as to preclude substantial gainful
activity, ” pursuant to 20 C.F.R. § 404.1520(d).
Id. At step four of the evaluation process the ALJ
must determine a claimant's Residual Functional Capacity
(“RFC”), which defines the maximum amount of work
the claimant is still “functionally capable of doing on
a regular and continuing basis, despite his impairments: the
claimant's maximum sustained work capability.”
Williams, 844 F.2d at 751; see also Id. at
751-52 (explaining the decisionmaker must consider both the
claimant's exertional and nonexertional limitations). The
ALJ compares the RFC to the claimant's past relevant work
to determine whether the claimant can resume such work.
See Barnes v. Colvin, 614 Fed.Appx. 940, 943 (10th
Cir. 2015) (citation omitted). “The claimant bears the
burden of proof through step four of the analysis.”
Neilson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir.
1993).
At step
five the burden shifts to the Commissioner to show that a
claimant can perform work that exists in the national
economy, taking into account the claimant's RFC, age,
education, and work experience. Neilson, 992 F.2d at
1120. The Commissioner can meet her burden by the testimony
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