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Papesh v. Commissioner, Social Security Administration

United States District Court, D. Colorado

October 22, 2018



          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.


         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).


         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).


         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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