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LaVoie v. Commissioner, Social Security Administration

United States District Court, D. Colorado

November 27, 2018

SUZANNE LaVOIE, Plaintiff,


          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 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 Commissioner's decision.


         This case arises from Plaintiff's application for DIB protectively filed on March 19, 2015. [#9-3 at 149].[1] 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.

         The 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].

         Relevant 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].

         Ms. 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].

         Plaintiff 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. at 89].

         The VE 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”)[2] 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 83].

         When 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].

         On May 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).


         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 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).


         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 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.

         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 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. 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 of a vocational expert. Tackett v. Apfel, 180 F.3d 1094, 1098-99, 1101 (9th Cir. 1999).

         The ALJ 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].

         Ms. 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 argument below.

         II. The RFC: Weighing the Medical Opinions

         In 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 case.”).

         The ALJ 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.].

         In 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].

         A. The Medical Record


         On July 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].

         On 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.].

         Plaintiff 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.].

         On 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.].


         Ms. 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 ...

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