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Stone v. Berryhill

United States District Court, D. Colorado

December 12, 2018

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


          Scott T. Varholak, United States Magistrate Judge.

         This matter is before the Court on Plaintiff James Stone's Complaint seeking review of the Commissioner of Social Security's decision denying Plaintiff's application for supplemental security income (“SSI”) under Title XVI of the Social Security Act (“SSA”), 42 U.S.C. §§ 1381 and 1383c. [#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. [#14] The Court has jurisdiction to review the Commissioner's final decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). This Court has carefully considered the Complaint [#1], the Social Security Administrative Record [#11], the parties' briefing [##15-16, 19], 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 AFFIRMS the Commissioner's decision.


         A. Five-Step Process for Determining Disability

         The Social Security Act 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. § 416.920(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 1967. [AR 98, 178][3] Plaintiff completed tenth grade [AR 202] and can communicate in English [AR 200]. On or about September 29, 2014, Plaintiff filed a Title XVI application for SSI [AR 178], claiming a disability onset date of August 1, 2009, which was later amended to August 14, 2014.[4] [AR 12, 99, 178, 197; see also AR 34] Thus Plaintiff was just under 47 years old at the time of the alleged onset. [AR 24] Plaintiff claims disability based upon the following impairments: severe confusion, seizures, back injury and back disorders, right leg injury, mood disorder, and anxiety. [AR 98-99, 201] Plaintiff worked as a construction worker from 1991 through 1999, then as a painter from 2001 through 2005, and finally as a plumber assistant from 2007 through the beginning of 2009. [AR 110, 202]

         A. Medical Background

         Plaintiff suffers from several physical ailments.[5] Plaintiff has a history of seizures, has been hospitalized several times after having a seizure, and has suffered from related head injuries. [See, e.g., AR 104, 111, 279, 302, 317, 349, 354, 497] Medical records indicate that Plaintiff's seizures are related, at least in part, to alcohol abuse and Plaintiff's noncompliance with his anticonvulsant medications. [AR 330, 349, 354, 476-77, 490] Plaintiff also has chronic lumbar spine compression fractures, contributing to lower back pain. [AR 104, 111, 347, 354, 402] Physical examinations have additionally revealed osteoporosis, right leg pain, and a right foot drop for which Plaintiff wears an ankle foot orthosis (“AFO”). [AR 111, 316, 355] In June 2016, Plaintiff was hospitalized after complaining of lower left extremity pain and swelling, and subsequently underwent surgery to remove a deep vein thrombosis (“DVT”). [AR 377-78, 411-12] Plaintiff was also treated for a neck hematoma. [AR 391]

         In addition to these physical ailments, Plaintiff has been diagnosed with moderate and recurrent major depressive disorder, anxiety disorder, and alcohol and other substance abuse. [AR 368, 371-72, 481] Plaintiff has not received inpatient mental health treatment, and has participated in very limited outpatient treatment as an adult. [AR 105, 367, 477; see also AR 431] Plaintiff reports significant memory issues. [AR 216, 219-20, 368, 371, 476] ¶ 2009, Plaintiff suffered a mild traumatic brain injury (“TBI”) as a result of a motorcycle accident, but denied noticing any cognitive changes directly following that injury. [AR 476] Instead, Plaintiff estimated the onset of his cognitive problems around 2010. [Id.] While providers have noted Plaintiff's memory impairments [AR 316, 327, 504], they also have observed that Plaintiff's memory loss most likely corresponds with psychosocial pressures, including Plaintiff's struggles with homelessness, and Plaintiff's substance abuse, rather than the TBI [AR 476, 480-81, 504].

         Plaintiff underwent a neuropsychological evaluation in December 2015, which revealed average to low-average performance across a variety of areas of testing, including intellectual functioning, academic achievement, attention, concentration, and processing speed, memory, language, visual spatial/constructional, and executive functions. [AR 478-80] Plaintiff's memory “also showed a pattern of low immediate recall, or initial learning, of unstructured material[, ] with improvement to the normal range with repetition, and good retention.” [AR 480] Plaintiff “endorsed depressive symptoms in the severe range, anxiety symptoms in the moderate range, and feelings of hopelessness in the moderate range on self-report measures. [Id.]

         B. ...

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