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Rajo v. Berryhill

United States District Court, D. Colorado

December 5, 2018

DEBORAH FERN RAJO, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          N. REID NEUREITER UNITED STATES MAGISTRATE JUDGE.

         The government determined that Plaintiff Deborah Fern Rajo is not disabled for purposes of the Social Security Act. (AR[1] 28.) Ms. Rajo has asked this Court to review that decision. The Court has jurisdiction under 42 U.S.C. § 405(g), and both parties have agreed to have this case decided by a U.S. Magistrate Judge under 28 U.S.C. § 636(c). (Dkt. #13.)

         Standard of Review

         In Social Security appeals, the Court reviews the decision of the administrative law judge ("ALJ") to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied. See Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007). "Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance." Raymond v. Astrue, 621 F.3d 1269, 1271-72 (10th Cir. 2009) (internal quotation marks omitted). The Court "should, indeed must, exercise common sense" and "cannot insist on technical perfection." Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Court cannot reweigh the evidence or its credibility. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

         Background

         At the second step of the Commissioner's five-step sequence for making determinations, [2] the ALJ found that Ms. Rajo "has the following severe impairments: degenerative disc disease of the cervical and lumbar spine, and fibromyalgia." (AR 25.) The ALJ then determined that Ms. Rajo "does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments" in the regulations. (AR 28.) The ALJ found Plaintiff's obesity, anemia, elbow and hand pain, and bipolar disorder to be non-severe impairments. (AR 26.) Because he concluded that Ms. Rajo did not have an impairment or combination of impairments that meets the severity of the listed impairments, the ALJ found that Ms. Rajo has the following residual functional capacity ("RFC"):

. . . [Plaintiff] has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except the work[] with frequent posturals, except occasional climbing of ladders, ropes, or scaffolds; and no exposure to hazards such as unprotected heights and moving mechanical parts; no concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. Lifting and carrying is limited to 50 pounds occasionally and 20 pounds frequently.

(AR 29.) The ALJ determined that Ms. Rajo "is capable of performing past relevant work as an activity therapist, assistant retail manager, certified nursing assistant, and receptions." (AR 33.) Alternatively, the ALJ determined that, given Ms. Rajo's age, education, work experience, and RFC, she could perform jobs that exist in significant numbers in the national economy, including: meat clerk, store laborer, and courtesy clerk. (AR 35.) The ALJ concluded that Ms. Rajo "is capable of making a successful adjustment to other work that exists in significant numbers in the national economy." (AR 36.)

         Ms. Rajo asserts three reversible errors: first, that the ALJ failed to include mental limitations in the RFC, despite finding Ms. Rajo has mild limitations in completing activities of daily living, social functioning, and concentration, persistence, or pace; second, that the ALJ failed to give weight to Mr. Rajo's fibromyalgia symptoms in the RFC analysis; and third, that the ALJ improperly discounted the opinion of Ms. Rajo's chiropractor, Dr. Jackson. (Dkt. # 15 at 1.)

         Analysis

         Ms. Rajo first argues that the ALJ, despite finding that Ms. Rajo had mild limitations in completing activities of daily living, social functioning, and concentration, persistence, or pace, failed to include her mental limitations in the RFC. Ms. Rajo contends that this was a harmful error that requires remand for proper consideration of her non-severe mental impairments. The Court agrees.

         The Commissioner of Social Security employs a special technique to evaluate the severity of mental impairments and their effect on a claimant's ability to work. 20 C.F.R. §§ 404.1520a(a), 416.920a(a). In applying the special technique, the ALJ must first decide whether the claimant has a medically determinable mental impairment. Id. §§ 404.1520a(b)(1), 416.920a(b)(1). Next, the ALJ must rate the degree of the functional limitation resulting from the claimant's medically determinable mental impairments in four broad functional areas: "[u]nderstand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself." Id. §§ 404.1520a(c)(3), 416.920a(c)(3).[3] The ALJ rates the degree of limitation as either none, mild, moderate, marked, or extreme. Id. §§404.1520a(c)(4), 416.920a(c)(4).

         Here, at the first step of the special technique, the ALJ determined that Ms. Rajo had a medically determinable mental impairment of bipolar disorder. (AR 26.) At the second step, the ALJ determined that Ms. Rajo's bipolar disorder would cause her mild limitations in activities of daily living; social functioning; and concentration, persistence, or pace. (AR 27.) He then determined that Ms. Rajo experienced no episodes of decompensation, noting that she had not been hospitalized during the relevant period. (Id.) The ALJ determined that Ms. Rajo's mental impairments were not severe because they did not cause more than minimal limitations on her ability to perform basic mental work activities. (Id.)

         The ALJ stated that his conclusion was supported by the objective evidence. He noted that in multiples instances, Ms. Rajo's mood and affect was described as normal, and she was described was alert, cooperative, well-groomed, and properly oriented. (Id.) Moreover, the ALJ gave great weight to the opinion of Dr. Mac Bradley who, after a 2014 consultative examination, diagnosed Ms. Rajo with bipolar disorder and opined that she was mildly ...


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