United States District Court, D. Colorado
ORDER AFFIRMING DENIAL OF SOCIAL SECURITY DISABILITY
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
matter is before the Court on review of the Social Security
Commissioner's decision denying Plaintiff Deborah
Davis' (“Plaintiff”) application for
disability benefits.Jurisdiction is proper under 42 U.S.C.
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.)
reasons set forth below, the Court affirms the decision of
the Commissioner to deny Plaintiff's applications for
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.)
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.)
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
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.
STANDARD OF REVIEW
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).
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).
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).
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 ...