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Darrow v. Berryhill

United States District Court, D. Colorado

March 4, 2019

BEVERLY J. DARROW, 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 Beverly J. Darrow is not disabled for purposes of the Social Security Act. (AR[1] 24.) Ms. Darrow 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. #10.)

         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. Darrow “has the following severe impairments: posttraumatic stress disorder [(“PTSD”)], generalized anxiety disorder, major depressive disorder, adjustment disorder, insomnia, and pain disorder.” (AR 12.) The ALJ found Ms. Darrow's hypertension and vertigo to be non-severe impairments. (AR 13.) He also determined that Ms. Darrow had no medically determinable impairment of fibromyalgia, noting that she has never been diagnosed with this disorder, “and no provider has ever excluded other causes for her purported claim.” (Id.)

         The ALJ then determined at step three that Ms. Darrow “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 14.) He found that Ms. Darrow's impairments caused a mild restriction in activities of daily living, moderate difficulties in social functioning and concentration, persistence, or pace, and noted that Ms. Darrow had no episodes of decompensation. (AR 14-15.) The ALJ also determined that Ms. Darrow did not have a medically documented history of chronic affective disorder or an impairment resulting in the complete inability to function independently outside her home. (AR 15-16.)

         Because he concluded that Ms. Darrow did not have an impairment or combination of impairments that meets the severity of the listed impairments, the ALJ found that Ms. Darrow has the following residual functional capacity (“RFC”):

[Ms. Darrow] has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant cannot climb ladders, ropes, or scaffolds, and she should have no exposure to hazards. The claimant can understand, remember, and carry out no more than simple tasks and instructions. The claimant should not be subject to production-rate pace work, such as assembly line work. The claimant should not perform team or tandem work, and she cannot perform customer-service based work.

         (AR 16.)

         The ALJ found that Ms. Darrow was unable to perform any past relevant work. (AR 22-23.) Ms. Darrow, at 55, was found to be an individual of advanced age on the alleged disability onset date. (AR 12, 23.) The ALJ concluded that, considering Ms. Darrow's age, education, work experience, and RFC, “there are jobs that exist in significant numbers in the national economy” that Ms. Darrow could perform. (AR 23.) Based on testimony of a Vocational Expert (“VE”), the ALJ found Ms. Darrow could perform other work such as a kitchen helper, hospital cleaner, and floor waxer. (AR 23-24.) Accordingly, Ms. Darrow was deemed not to have been under a disability from the alleged onset date of May 29, 2013. (AR 24.)

         Ms. Darrow now argues that the ALJ improperly weighed the opinion evidence of consultative psychologist Dr. Immaculate Wesley. (Dkt. #13.)

         Analysis

         Ms. Darrow argues that the ALJ committed a reversible error by giving examining psychologist Dr. Wesley's opinion minimal weight. The ...


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