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Davis v. Berryhill

United States District Court, D. Colorado

January 10, 2019

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



         This matter is before the Court on review of the Social Security Commissioner's decision denying Plaintiff Deborah Davis' (“Plaintiff”) application for disability benefits.[1]Jurisdiction is proper under 42 U.S.C. § 405(g).

         Plaintiff argues that the administrative law judge's (“ALJ”) determination that Plaintiff is not entitled to disability benefits amounts to reversible legal error for several reasons: (1) the weight the ALJ gave to the opinion produced by Ellen Ryan, MD was not based on substantial evidence; (2) the ALJ failed to consider non-severe limitations in the ALJ's residual functional capacity determination; and (3) the ALJ failed to explain why some but not all of the limitations noted by Victor Nwanguma, MD were adopted. (Doc. # 14.)

         For the reasons set forth below, the Court affirms the decision of the Commissioner to deny Plaintiff's applications for disability benefits.

         I. BACKGROUND

         Plaintiff suffers from a number of health issues including chronic respiratory failure, obstructive sleep apnea, depression, obesity, and grade IV chondromalacia of the right knee-for which she had knee surgery on December 14, 2016. (Doc. # 14 at 3.) Plaintiff is also dependent on oxygen. Plaintiff's last day of employment was on July 1, 2014. (Id.)

         On June 28, 2016, Plaintiff filed an application for a period of disability and disability insurance benefits. (AR at 19.) Plaintiff also filed an application for supplemental security income on July 27, 2016. In both applications, Plaintiff alleged disability beginning June 27, 2015. Plaintiff's claims were denied on March 16, 2017. (Id.)

         Subsequently, Plaintiff filed a written request for a hearing on May 15, 2017. (Id.) Plaintiff, represented by counsel, appeared and testified at a hearing held before an ALJ on September 21, 2017. Doris J. Shriver, an impartial vocational expert, also appeared at the hearing. On December 11, 2017, the ALJ issued a written decision in which the ALJ noted that when Plaintiff was asked about her activities of daily living, Plaintiff indicated:

She was able to maintain personal care, including dressing, bathing, grooming, and feeding herself, albeit with knee pain and inconvenience of her oxygen tube. [Plaintiff] denied needing any reminders to take care of personal needs or grooming, and indicated she used a pill organizer for her medications. She denied needing reminders to go places. [Plaintiff] endorsed preparing meals on a daily basis, but denied completing house chores due to irritation from dust and other airborne particles. She indicated an ability to drive, but denied going out alone. [Plaintiff] noted she shopped in stores twice per month, and was able to manage financial accounts. She endorsed hobbies of painting, reading, and watching television. She noted socializing with family on a weekly basis. [Plaintiff] denied any problems getting along with family, friends, or neighbors, but reported her social activities had diminished due to her breathing difficulties. She averred she was able to walk ½ block before she needed to rest for fifteen minutes. She estimated an ability to lift and carry five to twelve pounds. [Plaintiff] indicated she did not finish what she started, and had problems remembering and concentrating. She reported that stress and changes in routine caused anxiety and shortness of breath.

(Id. at 25.) The ALJ concluded that Plaintiff “described daily activities that are inconsistent with the claimant's allegations of disabling symptoms and limitations.” Similarly, with regard to the medical evidence in the record, the ALJ concluded that “the objective findings fail to provide strong support for [Plaintiff's] allegations of disabling symptoms and limitations.” (Id.)

         Therefore, the ALJ determined that Plaintiff was not disabled for purposes of her claims for disability, disability insurance benefits, and supplemental security income. (Id. at 31.) On March 8, 2018, the Appeals Council denied Plaintiff's request for review of the ALJ's decision. (Id. at 2.) Accordingly, the ALJ's decision became the final decision of the Commissioner of Social Security. (Id.); Blea v. Barnhart, 466 F.3d 903, 908 (10th Cir. 2006). The Council's decision not to review Plaintiff's case gave rise to the instant action.


         When reviewing the Commissioner's decision, the Court is limited to determining “whether the findings are supported by substantial evidence and whether the Secretary applied the correct legal standards.” Pacheco v. Sullivan, 931 F.2d 695, 696 (10th Cir. 1991); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”). First, the Supreme Court has defined “substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 217 (1938). “Substantial evidence is more than a scintilla, but less than a preponderance . . . .” Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987).

         In reviewing the record to make the substantial evidence determination, the Court “may not reweigh the evidence nor substitute [its] judgment for the Secretary's.” Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). In addition, the Court “may not displace the agency's choice between two fairly conflicting views, even though the [C]ourt would justifiably have made a different choice had the matter been before it de novo.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotation marks and citation omitted). Also, the Court “defer[s] to the ALJ on matters involving the credibility of witnesses.” Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994).

         Second, in addition to the absence of substantial supporting evidence, “[f]ailure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal.” Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984); see also Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). “There are specific rules of law that must be followed in deciding whether evidence is substantial in these disability cases.” Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987).

         However, not every error in evaluating evidence or applying the correct legal standard warrants reversal or remand. “Courts may not reverse and remand for failure to comply with a regulation without first considering whether the error was harmless.” Bornette v. Barnhart, 466 F.Supp.2d 811, 816 (E.D. Tex. 2006); see also Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (recognizing that the Tenth Circuit has “specifically applied [the principle of harmless error] in social security disability cases” and collecting cases). Harmless error exists where it is ...

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