United States District Court, D. Colorado
Kristen L. Mix, United States Magistrate Judge
matter is before the Court on the Social Security
Administrative Record [#12],  filed January 12,
2018, in support of Plaintiff's Complaint [#2] seeking
review of the decision of Defendant Nancy A. Berryhill,
Acting Commissioner of the Social Security Administration,
(“Defendant” or “Commissioner”)
denying Plaintiff's claim for disability insurance
benefits pursuant to Title II of the Social Security Act (the
“Act”), 42 U.S.C. § 401 et seq. On February
21, 2018, Plaintiff filed an Opening Brief [#18] (the
“Brief”). Defendant filed a Response [#19] in
opposition, and Plaintiff filed a Reply [#22]. The Court has
jurisdiction to review the Commissioner's final decision
under 42 U.S.C. §§ 405(g) and 1383(c). The Court
has reviewed the entire case file and the applicable law and
is sufficiently advised in the premises. For the reasons set
forth below, the decision of the Commissioner is
alleges that he became disabled on May 1, 2013. Tr.
On July 17, 2014, Plaintiff filed applications for disability
and disability insurance benefits pursuant to Title II. Tr.
18. On May 29, 2015, an Administrative Law Judge (the
“ALJ”) issued an unfavorable decision. Tr. 26.
determined that Plaintiff met the insured status requirements
of the Act through December 31, 2016, and that Plaintiff had
not engaged in substantial gainful activity
(“SGA”) from his alleged onset date of May 1,
2013. Tr. 20. The ALJ found that Plaintiff suffers from three
severe impairments: (1) depressive disorder, (2) anxiety
disorder, and (3) chronic hip pain. Tr. 20. However, the ALJ
also found that these impairments, individually or in
combination, do not meet or medically equal “the
severity of one of the listed impairments in 20 C.F.R. §
Pt. 404, Subpt. P, App. 1 (20 C.F.R. 404.1520(d), 404.1525
and 404.1526).” Tr. 20. The ALJ next concluded that
Plaintiff has the residual functional capacity
(“RFC”) to perform work at a light exertional
level with the following limitations:
[H]e cannot climb ladders or stairs; he can occasionally
stoop, kneel, crouch and crawl; and he cannot perform work
that involves contact with the general public or more than
occasional contact with co-workers and supervisors.
Tr. 21. Based on the RFC and the testimony of an impartial
vocational expert (“VE”), the ALJ found that
Plaintiff was able to perform his past relevant work as a
software analyst. Tr. 71-72. He therefore found Plaintiff not
disabled at step four of the sequential evaluation. Tr.
25-26. The ALJ's decision has become the final decision
of the Commissioner for purposes of judicial review. 20
C.F.R. § 404.981.
Standard of Review and Applicable Law
to the Act:
[T]he Social Security Administration is authorized to pay
disability insurance benefits and Supplemental Security
Income to persons who have a “disability.” A
person qualifies as disabled, and thereby eligible for such
benefits, “only if his physical or mental impairment or
impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national
Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003)
(quoting 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B)). Under the applicable legal standard, a
claimant is disabled if he or she is unable “to engage
in any substantial gainful activity by reason of any
medically determinable physical or mental impairment . . .
which has lasted or can be expected to last for a continuous
period of not less than twelve months.” 42 U.S.C.
§ 423(d)(1)(a); see also Wall v.
Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (quoting 20
C.F.R. § 416.905(a)). The existence of a qualifying
disabling impairment must be demonstrated by “medically
acceptable clinical and laboratory diagnostic”
findings. 42 U.S.C. §§ 423(d)(3), 423(d)(5)(A).
a claimant has one or more severe impairments the Social
Security [Act] requires the [Commissioner] to consider the
combined effects of the impairments in making a disability
determination.” Campbell v. Bowen, 822 F.2d
1518, 1521 (10th Cir. 1987) (citing 42 U.S.C. §
423(d)(2)(C)). However, the mere existence of a severe
impairment or combination of impairments does not require a
finding that an individual is disabled within the meaning of
the Act. To be disabling, the claimant's condition must
be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months.
See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir.
Court reviews a final decision by the Commissioner by
examining the administrative record and determining
“whether the [ALJ's] factual findings are supported
by substantial evidence in the record and whether the correct
legal standards were applied.” Wilson v.
Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). However,
the Court “may neither reweigh the evidence nor
substitute [its] judgment for that of the agency.”
Harper v. Colvin, 528 Fed.Appx. 887, 890 (10th Cir.
2013) (quoting Barnett v. Apfel, 231 F.3d 687, 689
(10th Cir. 2000)). In other words, the Court does not
reexamine the issues de novo. Sisco v. U.S. Dep't of
Health & Human Servs., 10 F.3d 739, 741 (10th Cir.
1993). Thus, even when some evidence could support contrary
findings, the Court “may not displace the agency's
choice between two fairly conflicting views, ” even if
the Court may have “made a different choice had the
matter been before it de novo.” Oldham v.
Astrue, 509 F.3d 1254, 1257-58 (10th Cir. 2007).
Social Security Administration uses a five-step framework to
determine whether a claimant meets the necessary conditions
to receive Social Security benefits. See 20 C.F.R.
§§ 404.1520, 416.920. The claimant bears the burden
of proof at steps one through four, and if the claimant fails
at any of these steps, consideration of any subsequent step
or steps is unnecessary. Williams v. Bowen, 844 F.2d
748, 750 (10th Cir. 1988) (“If a determination can be
made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not
necessary.”). The Commissioner bears the burden of
proof at step five. Bowen v. Yuckert, 482 U.S. 137,
146 n.5 (1987).
one requires the ALJ to determine whether a claimant is
“presently engaged in substantial gainful
activity.” Wall, 561 F.3d at 1052 (quoting
Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir.
2004)). If not, the ALJ considers at step two whether a
claimant has “a medically severe impairment or
impairments.” Id. “An impairment is
severe under the applicable regulations if it significantly
limits a claimant's physical or mental ability to perform
basic work activities.” Id. 1052 (citing 20
C.F.R. § 404.1521). Next, at step three, the ALJ
considers whether a claimant's medically severe
impairments are equivalent to a condition “listed in
the appendix of the relevant disability regulation, ”
i.e., the “Listings.” Wall, 561
F.3d at 1052 (quoting Allen, 357 F.3d at 1142).
“If a claimant's impairments are not equivalent to
a listed impairment, the ALJ must consider, at step four,
whether a claimant's impairments prevent [him or her]
from performing [his or her] past relevant work.”
Wall, 561 F.3d at 1052 (citing Allen, 357
F.3d at 1142). “Even if a claimant is so impaired, the
agency considers, at step five, whether [he or she] possesses
the sufficient [RFC] to perform other work in the national
must consider all evidence and explain why he or she finds a
claimant not disabled. Clifton v. Chater, 79 F.3d
1007, 1009 (10th Cir. 1996). However, the ALJ need not
specifically “reference everything in the
administrative record.” Wilson, 602 F.3d at
1148. “Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” Id. at 1140 (internal quotation
marks omitted). “It requires more than a scintilla, but
less than a preponderance.” Lax v. Astrue, 489
F.3d 1080, 1084 (10th Cir. 2007). A decision by the ALJ is
not based on substantial evidence “if it is overwhelmed
by other evidence in the record . . . .” Grogan v.
Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005). In
other words, the Court's determination of whether the ALJ
has supported his or her ruling with substantial evidence
“must be based upon the record taken as a whole.”
Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.
1994). Further, evidence is not substantial if it
“constitutes mere conclusion.” Musgrave v.
Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). In
addition, “if the ALJ failed to apply the correct legal
test, there is a ground for reversal apart from a lack of
substantial evidence.” Thompson v. Sullivan,
987 F.2d 1482, 1487 (10th Cir. 1993).
asserts that the ALJ erred in two primary ways. First,
Plaintiff argues that the ALJ improperly found that
Plaintiff's anxiety did not meet Listing 12.06.
Brief [#18] at 3. Second, Plaintiff argues that the
RFC formulated by the ALJ is not supported by substantial
evidence of the record. Id.
Step Three: Listing 12.06
the third step, we [will] consider the medical severity of
your impairment(s). If you have an impairment(s) that meets
or equals one of our listings in appendix I of this subpart
and meets the duration requirement, we will find that you are
disabled.” Gallegos v. Colvin, 646 Fed.Appx.
613, 615 (quoting 20 C.F.R. § 404.1520(a)(4)(iii)). In
other words, “[s]tep three asks whether any medically
severe impairment, alone or in combination with other
impairments, is equivalent to any of a number of listed
impairments so severe as to preclude substantial gainful
employment.” Gallegos, 646 Fed.Appx. at
615-616 (quoting Fischer-Ross v. Barnhart, 431 F.3d
729, 731 (10th Cir. 2005) (internal quotation marks
meet Listing 12.06 for anxiety related disorders, the
claimant must establish that he meets the criteria of
subsections A and B, or A and C.” Gallegos,
646 Fed.Appx. at 616 (citing 20 C.F.R. 404, Subpt. P, App. I,
§ 12.06). Plaintiff asserts that he met the criteria of
subsections A and B, see Brief [#18] at 12, and thus
the Court need not examine subsection C here. See 20
C.F.R. 404, Subpt. P, App. I, § 12.06. Specifically,
Plaintiff asserts that the evidence supports the following
findings sufficient to meet the requirements of Listing
A. Medically documented findings of at least one of the
1. Generalized persistent anxiety accompanied by three out of
four of the ...