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Bradley v. Berryhill

United States District Court, D. Colorado

November 26, 2018

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



         This matter is before the Court on Plaintiff Kristin Bradley's Complaint seeking review of the Commissioner of Social Security's decision denying Plaintiff's application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“SSA”), 42 U.S.C. §§ 401 et seq. [#1] The parties have both consented to proceed before this Court for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2. [See #13] The Court has jurisdiction to review the Commissioner's final decision pursuant to 42 U.S.C. § 405(g). This Court has carefully considered the Complaint [#1], the Social Security Administrative Record [#10], the parties' briefing [#15, 16], and the applicable case law, and has determined that oral argument would not materially assist in the disposition of this appeal. For the following reasons, the Court REVERSES the Commissioner's decision and REMANDS for further proceedings.


         A. Five-Step Process for Determining Disability

         The SSA defines disability as the inability “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.”[1] 42 U.S.C. § 423(d)(1)(A); Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just his underlying impairment.” Lax, 489 F.3d at 1084. “In determining whether an individual's physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility . . ., the Commissioner [ ] shall consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity.” 42 U.S.C. § 423(d)(2)(B).

         “The Commissioner is required to follow a five-step sequential evaluation process to determine whether a claimant is disabled.” Hackett v. Barnhart, 395 F.3d 1168, 1171 (10th Cir. 2005). The five-step inquiry is as follows:

1. The Commissioner first determines whether the claimant's work activity, if any, constitutes substantial gainful activity;
2. If not, the Commissioner then considers the medical severity of the claimant's mental and physical impairments to determine whether any impairment or combination of impairments is “severe;”[2]
3. If so, the Commissioner then must consider whether any of the severe impairment(s) meet or exceed a listed impairment in the appendix of the regulations;
4. If not, the Commissioner next must determine whether the claimant's residual functional capacity (“RFC”)-i.e., the functional capacity the claimant retains despite his impairments-is sufficient to allow the claimant to perform his past relevant work, if any;
5. If not, the Commissioner finally must determine whether the claimant's RFC, age, education, and work experience are sufficient to permit the claimant to perform other work in the national economy.

See 20 C.F.R. § 404.1520(a)(4); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005); Bailey v. Berryhill, 250 F.Supp.3d 782, 784 (D. Colo. 2017). The claimant bears the burden of establishing a prima facie case of disability at steps one through four, after which the burden shifts to the Commissioner at step five to show that the claimant retains the ability to perform work in the national economy. Wells v. Colvin, 727 F.3d 1061, 1064 n.1 (10th Cir. 2013); Lax, 489 F.3d at 1084. “A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis.” Ryan v. Colvin, 214 F.Supp.3d 1015, 1018 (D. Colo. 2016) (citing Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991)).

         B. Standard of Review

         In reviewing the Commissioner's decision, the Court's review is limited to a determination of “whether the Commissioner applied the correct legal standards and whether her factual findings are supported by substantial evidence.” Vallejo v. Berryhill, 849 F.3d 951, 954 (10th Cir. 2017) (citing Nguyen v. Shalala, 43 F.3d 1400, 1402 (10th Cir. 1994)). “With regard to the law, reversal may be appropriate when [the Commissioner] either applies an incorrect legal standard or fails to demonstrate reliance on the correct legal standards.” Bailey, 250 F.Supp.3d at 784 (citing Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir.1996)).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (quoting Lax, 489 F.3d at 1084). “Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.” Grogan, 399 F.3d at 1261-62 (quoting Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992)). The Court must “meticulously examine the record as a whole, including anything that may undercut or detract from the [Commissioner's] findings in order to determine if the substantiality test has been met.'” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (quotation omitted). The Court, however, “will not reweigh the evidence or substitute [its] judgment for the Commissioner's.” Hackett, 395 F.3d at 1172.


         Plaintiff was born in 1975. [AR 54, 133][3] Plaintiff has a college degree. [AR 34, 161] She can communicate in English. [AR 35-47, 159] On or about July 22, 2016, Plaintiff filed a Title II application for DIB. [AR 11, 133] Plaintiff claims a disability onset date of November 30, 2015, thus Plaintiff was 40 years old at the time of the alleged onset. [Id.] Plaintiff claims disability based upon severe fibromyalgia, severe asthma, chronic migraines, post-traumatic stress disorder (“PTSD”), pleurisy, hypoglycemia, vocal cord deficiency, sub-clinical hypothyroidism, orthostatic hypertension, and type 1 Chiari malformation. [AR 67, 160] Plaintiff worked in a variety of positions prior to the alleged disability onset date, including as a teacher and an assistant director of a child care business. [AR 65, 162] Most recently, Plaintiff worked selling cosmetics, which she did until her alleged onset date. [AR 35-36, 160, 162] Plaintiff has not engaged in substantial gainful activity from her alleged onset date through her date last insured, which the ALJ determined to be December 31, 2016. [AR 13]

         A. Medical Background

         Plaintiff's chronic pain began in 2012 or 2013 after she tore her right anterior cruciate ligament (“ACL”).[4] [AR 35, 218] She testified that she “worked through it without surgery, but . . . the pain kept getting worse and worse and then started spreading throughout [her] body.” [AR 35] Medical records further reflect that Plaintiff suffers from a history of asthma, allergic rhinitis, and vocal cord dysfunction. [AR 217]

         In November 2014, Plaintiff went to the emergency room because of an asthma attack. [AR 419, 428] Plaintiff told hospital staff that her problems began the previous day during a martial arts test. [AR 425] Plaintiff indicated that her pain rated at ten on a scale of ten. [AR 424] Medical records indicate that she has a long history of asthma with frequent exacerbation despite medication, often requiring hospitalization. [AR 422] Plaintiff was treated with steroids and responded well. [Id.]

         At a doctor's appointment in early December 2014, Plaintiff expressed anxiety and vocal cord dysfunction, and the treating physician noted that Plaintiff suffered from vocal cord paresis that “certainly d[id] not improve the situation.” [AR 214] At an anemia check-up on or about December 5, 2014, Plaintiff reported that she was “very fatigued” and, based upon a review of laboratory results, mild anemia was indicated. [AR 259] At a cardiology consultation several days later, Plaintiff stated that her chest pain rated from eight to ten out of ten, and could last anywhere from several days to several weeks in duration. [AR 224] The notes from the consultation indicated that Plaintiff was “quite active” but that the chest pain had “sidelined her such that she [wa]s no longer able to work or to compete” in martial arts events. [Id.] Plaintiff indicated that she was becoming increasingly fatigued. [AR 225]

         On or about December 11, 2014, Plaintiff returned to the emergency room complaining of chest pain. [AR 414, 418] Plaintiff rated her pain as ten out of ten. [AR 256, 408] Medical records reflect an unsteady gait and that Plaintiff needed assistance walking. [AR 411] At a rheumatology consultation several days later, Plaintiff reported to physicians that ibuprofen and steroids helped with her chest pain, but do not eliminate the pain. [AR 274] Plaintiff further indicated that she was starting to notice weakness in her arm, pain and locking in her shoulder, and chronic numbness down the arm. [Id.]

         By January 2015, Plaintiff began feeling better and described her pain as three out of ten. [AR 271] Ibuprofen improved, but did not eliminate, the pain. [Id.] An x-ray revealed some degenerative disk disease. [Id.] In February 2015, Plaintiff told medical providers that she was “feeling very well, ” that her “pain ha[d] subsided, ” and that she “fe[lt] like she [wa]s back, if not better than she ha[d] been before.” [AR 255, 269] She rated her pain as zero out of ten. [AR 269] She was active and getting ready for competitive martial arts events. [Id.]

         In early April 2015, however, Plaintiff twice returned to the emergency room with chest pain. [AR 243, 367, 387] The emergency room treatment providers diagnosed her with bronchitis. [AR 243, 376, 391] Plaintiff was given a Z-Pak at her first emergency room visit, but returned to the hospital two days later complaining of increased chest pain. [AR 243] During this second visit, Plaintiff rated the pain as seven on a scale of ten. [AR 379] Plaintiff described herself as “very active, especially with martial arts.” [Id.] Over the next several weeks, Plaintiff's pain initially lessened [AR 250], but by April 24, 2015, had returned [AR 246, 248]. An examination at the end of April 2015 reflected “marked tenderness” to Plaintiff's left upper chest wall. [AR 246] Further chest pain was noted in medical records from May 2015, along with a note that physicians had been unable to diagnose the cause of Plaintiff's pain. [AR 265]

         On June 1, 2015, Plaintiff was again seen at a hospital for evaluation of her chest pain. [AR 287] Records indicate that it was “uncertain if [Plaintiff] ha[d] an underlying inflammatory disorder, but she d[id] have elevated inflammatory markers associated with her episodes.” [Id.] The records further indicate that her symptoms were improved with Medrol, and Plaintiff “[wa]s back to her normal level of competition.” [Id.]

         In August 2015, Plaintiff went to the emergency room once and was seen by a clinic twice. [AR 290-95, 359] She complained of chest pain which had transitioned from sporadic pain to “more chronic symptoms.” [AR 292] At the emergency room, Plaintiff reported that her pain rated ten out of ten. [AR 364] During a clinic visit, she explained that the pain was so severe, at times, that she remained in bed for many days a week. [AR 292] Plaintiff also complained of dizziness and weakness, but denied any numbness or tingling. [AR 290] A physical examination revealed chest wall tenderness. [AR 291] Nonetheless, she was continuing her martial arts training, which appeared to make the pain worse. [AR 290, 292]

         In September 2015, Plaintiff was treated on several occasions for her pain, including three emergency room visits and a clinic visit. [AR 297, 324, 335, 344] By now, the pain had spread to other parts of her body, including her neck, back, feet, and chest. [AR 296-97] The pain was so severe that on one occasion she needed to be transported by ambulance to the emergency room. [AR 297, 324] On that trip to the emergency room she was nauseous and ...

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