United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge
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 Social
Security Administration's (“Commissioner” or
“Defendant”) final decision denying Plaintiff
Suzanne LaVoie's (“Plaintiff” or “Ms.
LaVoie”) application for Disability Insurance Benefits
(“DIB”). Pursuant to the Parties' consent
[#11], this civil action was referred to this Magistrate
Judge for a decision on the merits. See [#19]; 28
U.S.C. § 636(c); Fed.R.Civ.P. 73; D.C.COLO.LCivR 72.2.
Upon review of the Parties' briefing, the entire case
file, the Administrative Record, and the applicable case law,
this court respectfully AFFIRMS the
case arises from Plaintiff's application for DIB
protectively filed on March 19, 2015. [#9-3 at
149]. Ms. LaVoie graduated from high school,
completed several years of college but did not obtain her
undergraduate degree, and held several skilled jobs in the
financial industry. See, e.g., [#9-2 at 53-54; #9-7
at 276, 281-87, 292]. Ms. LaVoie alleges she became disabled
on February 6, 2012, due to obesity, posttraumatic stress
disorder (“PTSD”), back problems, neuropathy,
agoraphobia, bi-lateral knee replacement, panic and anxiety,
paranoia, chronic pain, and complex PTSD. See [#9-4
at 150-51; #9-7 at 274]. Ms. Hill was fifty years-old on the
alleged onset date of her claimed disability.
Social Security Administration denied Plaintiff's
application administratively on June 10, 2015. See
[#9-4 at 149]. Ms. Hill requested a hearing before an
Administrative Law Judge (“ALJ”), see
[#9-5 at 174], which ALJ Jamie Mendelson (“the
ALJ”) held on January 3, 2017, see [#9-2 at
37]. The ALJ received testimony from the Plaintiff and
Vocational Expert Aimee Spinelli (the “VE”) at
the hearing. See [id. at 36-91].
here, Plaintiff testified to her numerous psychological
ailments. She explained that she was diagnosed with PTSD and
complex PTSD stemming from the terrorist attacks of September
11, 2001 on the World Trade Center where Plaintiff worked
(Plaintiff was trapped in a subway car under World Trade
Center Building 1 when the attacks occurred) and that she
suffers from intense anxiety and frequent panic attacks,
which make it difficult for her to leave her home. [#9-2 at
61-63]. Ms. LaVoie attested that she once went ten days
without leaving her home, see [id. at 72],
and that she had to conduct several “practice
runs” before attending the hearing to avoid
exacerbating her anxiety, [id. at 67-68]. Ms. LaVoie
continued that she feels very anxious being in public, and
that she becomes anxious if shopping in stores where there
are no windows or where she cannot see the windows.
See [id. at 64].
LaVoie also testified to issues with concentration and
memory, stating that she “constantly go[es] off on
tangents” because she tends to sporadically remember
things that she could not remember previously. [#9-2 at 66];
see also [id. at 76 (stating that she had
issues using the computer because she “get[s]
lost.”)]. She continued that she also struggles with
paranoia, believing the “system is rigged”
against her and fearing that she will never find relief from
her pain; that she struggles with anger issues and lashing
out at people; and that she struggles with personality
changes, stating that she is “not who [she] was”
and that she is broken. [Id. at 66-67]. Ms. LaVoie
also explained that she struggles mightily with sleeping
throughout the night, but that recent medication adjustments
have allowed for up to four hours of sleep at a time.
[Id. at 69].
further testified that her mental ailments and her
medications have contributed to significant weight gain that
keeps her sedentary. See [#9-2 at 54, 70]. In
addition, Ms. LaVoie stated that certain medications cause
her to self-mutilate “the top of [her] head, [her]
face, [her] shoulders, [her] bicep, and [her] forearm, and
[her] thigh” as a form of coping with the “pain
inside of [her].” [Id. at 65]. Ms. LaVoie then
explained that other medications caused issues with her motor
functioning, causing her to fall and lose coordination
regularly while other medications affected her cognitive
functioning and even caused hallucinations. [Id. at
70-71]. But Ms. LaVoie did state that eye movement
desensitization and reprocessing therapy (“EMDR”)
was the only therapy that helped. See [id.
also testified at the hearing. The VE first summarized
Plaintiff's past relevant work. See [#9-2 at
79-80]. The VE then considered the work an individual could
perform with no exertional limitations but with the
non-exertional limitations of understanding, remembering, and
carrying out only simple instructions and tasks learned in
three months on the job and occasionally interacting with
supervisors, co-workers, and members of the public.
See [id. at 80-81]. The VE testified that
this individual could not perform any of Ms. LaVoie's
past relevant work either as generally or as actually
performed. [Id. at 81]. But the VE explained that,
consistent with the Dictionary of Occupational Titles
(“DOT”), such an individual could perform the
unskilled, medium exertion jobs of janitor, hand packager,
and laundry worker-each with a specific vocational
preparation (“SVP”) level of 2. See
[id.]. The VE also testified that, consistent with
the DOT, an individual could perform these three jobs even if
requiring the additional limitations of no interaction with
the public and only occasional changes in the work setting.
[Id.]. However, the VE explained that such an
individual could not perform any of the three jobs with the
additional physical limitation of having to rotate between
sitting and standing every 15 minutes, because “every
15 minutes would be too excessive” and would affect
that individual's ability to consistently perform the
duties of the jobs. [Id. at 82]. On the other hand,
if that individual needed to rotate between sitting and
standing every hour, the VE testified that she could perform
the light, seated jobs of small products assembler, mailroom
clerk, and office helper-all SVP level 2. [Id. at
questioned by Plaintiff's attorney, the VE testified that
if an individual had similar restrictions as the individual
hypothesized by the ALJ but had limited reasoning, math, and
language capabilities, then such an individual could not
perform jobs of janitor, hand packager, or laundry worker.
[Id. at 84-85]. The VE stated the same was true for
the jobs of small products assembler, mailroom clerk, and
office helper. See [id. at 85]. In
addition, the VE stated that the additional limitations of
being off-task at least 15% of the workday, missing two days
per month or being tardy two days per month due to mental
ailments, and constant inabilities to maintain concentration,
stay focused, and non-disruptive to others would preclude all
the jobs identified. See [id. at 85-87].
2, 2017, the ALJ issued a decision finding Ms. LaVoie not
disabled under the Act. [#9-2 at 29]. 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 1-6].
Plaintiff sought judicial review of the Commissioner's
final decision in the United States District Court for the
District of Colorado on January 12, 2018, invoking this
court's jurisdiction to review the Commissioner's
final decision under 42 U.S.C. § 1383(c)(3).
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 showing that
the ALJ was justified in her 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).
The ALJ's Decision
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 her
“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.
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 decision maker 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.
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
of a vocational expert. Tackett v. Apfel, 180 F.3d
1094, 1098-99, 1101 (9th Cir. 1999).
found that Ms. LaVoie met the insured status requirements for
DIB through December 31, 2017, and had not engaged in
substantial gainful activity since February 6, 2012. [#9-2 at
19]. At step two the ALJ determined Ms. LaVoie had the
following severe impairments: PTSD, major depressive
affective disorder, bipolar disorder, and generalized anxiety
disorder. [Id.]. At step three the ALJ determined
that Plaintiff did not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in Title 20, Chapter III, Part
404, Subpart P, Appendix 1 (20 C.F.R. §§
404.1520(d)). [Id. at 20]. The ALJ then determined
Plaintiff had the RFC to perform work at all exertional
levels subject to several non-exertional limitations
[id. at 21], and concluded at step four that Ms.
LaVoie could perform her prior relevant work [id. at
27]. At step five the ALJ concluded that there existed
additional jobs in the national economy that Ms. LaVoie could
perform. [Id. at 28].
LaVoie now appeals the ALJ's decision to this court. In
doing so, she raises just one issue: “[t]he ALJ erred
by failing to analyze the medical opinion evidence in
accordance with the regulations, Agency policy, and Tenth
Circuit precedent.” [#14 at 1]. I consider this
The RFC: Weighing the Medical Opinions
assessing a claimant's RFC, the ALJ must consider the
combined effect of all medically determinable impairments,
including the severe and non-severe. See Wells v.
Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013); 20 C.F.R.
§ 404.1529(a); SSR 96-9p. The ALJ must also address
medical source opinions. See Vigil v. Colvin, 805
F.3d 1199, 1201-02 (10th Cir. 2015). A claimant's RFC is
the most work the claimant can perform, not the least. 20
C.F.R. § 404.1545; SSR 83-10. The ALJ's RFC
assessment must be consistent with the whole record and
supported by substantial evidence. See generally Howard
v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004); SSR
96-8p. If it is, the court will not reverse the ALJ's
decision even if it could have reached a different
conclusion. Ellison, 929 F.2d at 536; see also
Flaherty, 515 F.3d at 1070 (explaining that the
reviewing court may not “reweigh or retry the
determined that Plaintiff retained the RFC to
perform a full range of work at all exertional levels but
with the following nonexertional limitations: the claimant
can understand, remember, and carry out simple instructions
and tasks that can be learned on the job in three months'
time; the claimant can make simple work-related decisions;
the claimant can occasionally interact with supervisors and
coworkers, but can have no interaction with members of the
public; and the claimant can tolerate occasional routine
changes in the work setting.
[#9-2 at 21]. Ms. LaVoie argues that the ALJ improperly
weighed the opinions of Plaintiff's treating sources:
Drs. David Kern, Howard Entin, and Joel Shebowich.
See [#14 at 4-7]. Plaintiff contends that these
opinions demonstrate greater non-exertional limitations than
those assessed by the ALJ's RFC determination, and that
the ALJ failed to provide specific, legitimate reasons for
discrediting these opinions in accordance with the relevant
regulations. See [#14 at 9-25]. Ultimately, Ms.
LaVoie argues that substantial evidence does not support the
ALJ's conclusions as to the opinions of Drs. Kern, Entin,
and Shebowich. See [id.].
considering Ms. LaVoie's challenge to the ALJ's
decision, the court begins its discussion of the relevant
medical evidence beginning in 2012, as Plaintiff alleges
February 6, 2012 as the date of onset of her disability and
her medical records prior 2012 do not mention her mental
ailments, which are the basis for the instant appeal. See
generally [#9-10 at 541-612].
The Medical Record
13, 2012, Plaintiff reported to Dr. Shebowich a history of
PTSD and that she and her husband were attending marital
counseling for their marital problems. [#9-9 at 487]. Dr.
Shebowich's physical exam revealed that Ms. LaVoie was
pleasant, comfortable, and mobile, but that Ms. LaVoie had
some anxiety and emotional lability during the visit when
discussing her marriage and the events of 9/11. [Id.
at 487-88]. Dr. Shebowich noted that Plaintiff was alert and
oriented and had normal and appropriate affect, clear thought
process with normal reasoning and converational tone and
logic, no flight of ideas, and no psychomotor retardation.
[Id. at 488].
October 22, 2012, Plaintiff presented to Dr. Shebowich to
follow-up on her depression. See [#9-9 at 442]. Ms.
LaVoie stated that she used Xanax several times per week for
her anxiety, that life stressors (i.e., her divorce) made her
depressed, and that she had seen a new life coach/therapist
given that her previous therapist had a stroke.
[Id.]. Upon physical examination, Dr. Shebowich
indicated that Plaintiff was pleasant, comfortable, mobile,
alert, oriented, emotional at times, talkative, and had a
clear thought process with normal reasoning and converational
tone and logic, no flight of ideas, and no psychomotor
retardation. See [id.].
returned to Dr. Shebowich for a follow-up appointment on
November 9, 2012. See [#9-9 at 446]. Plaintiff
reported that her sleep seemed less restful and that she was
more obsessive with organization but that this did not
adversely affect her days. See [id.]. Upon
physical exam, Dr. Shebowich indicated that Plaintiff was
alert and oriented and that Plaintiff had a normal and
appropriate affect, clear thought process with normal
reasoning and converational tone and logic, no flight of
ideas, and no psychomotor retardation. [Id.]. Dr.
Shebowich reported that Plaintiff “is doing well on
current meds” and that he would try adjusting
Plaintiff's medications to account for the compulsive
behavior. See [id.].
December 10, 2012, Plaintiff had a follow-up appointment with
Dr. Shebowich. [#9-9 at 450]. Plaintiff reported some
medication side effects with an increased dosage, that she
continued to see her therapist weekly and felt like
“she is getting better at discussing her feelings and
situation, ” that her anxiety is getting better, that
her use of Xanax was occasional, and that she was gaining
weight. See [id.]. Again, Dr. Shebowich
noted that Plaintiff was alert and oriented and had normal
and appropriate affect, clear thought process with normal
reasoning and converational tone and logic, no flight of
ideas, and no psychomotor retardation. [Id.]. Dr.
Shebowich also indicated that Plaintiff still struggled with
PTSD at times, but “overall she feels she is stable and
getting ‘back on her feet'”, and that
Plaintiff denied depression prior to the events of 9/11,
which has only improved gradually since. [Id.].
LaVoie saw Dr. Shebowich for a consultation on May 6, 2013.
[#9-9 at 480]. Plaintiff reported that she had been attending
weekly therapy, did not have any medication side effects, and
that she may be divorcing her husband. See
[id.]. Dr. Shebowich indicated that Plaintiff was
talkative, alert, and oriented, and had clear thought process
with normal reasoning and converational tone and logic, no
flight of ideas, and no psychomotor retardation.
[Id.]. Dr. Shebowich noted that Plaintiff ...