United States District Court, D. Colorado
Kristen L. Mix United States Magistrate Judge.
matter is before the Court on the Social Security
Administrative Record [#8],  filed December 8, 2017, in
support of Plaintiff's Complaint [#1] 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 January
17, 2018, Plaintiff filed an Opening Brief [#13] (the
“Brief”). Defendant filed a Response [#14] in
opposition, and Plaintiff filed a Reply [#20]. 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 she became disabled on June 1, 2014. Tr.
On October 28, 2014, Plaintiff filed an application for
disability and disability insurance benefits pursuant to
Title II. Tr. 20. On November 1, 2016, an Administrative Law
Judge (the “ALJ”) issued an unfavorable decision.
determined that Plaintiff met the insured status requirements
of the Act through June 30, 2017, and that Plaintiff had not
engaged in substantial gainful activity (“SGA”)
from her alleged onset date of June 1, 2014. Tr. 22. The ALJ
found that Plaintiff suffers from two severe impairments: (1)
degenerative disc disease and (2) status post bilateral knee
arthroplasty. Tr. 18. 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. 23.
The ALJ next concluded that Plaintiff has the residual
functional capacity (“RFC”) to perform work at a
light exertional level except with the limitations of only
occasionally engaging in postural activities and only
frequently using her upper extremities. Tr. 24. Based on the
RFC and the testimony of an impartial vocational expert
(“VE”), the ALJ found that Plaintiff was able to
perform her past relevant work as an executive administrative
assistant. Tr. 28. He therefore found Plaintiff not disabled
at step four of the sequential evaluation. Tr. 29. The
ALJ's decision has become the final decision of the
Commissioner for purposes of judicial review. 20 C.F.R.
Standard of Review and Applicable Law
Pursuant 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 four primary ways. First,
Plaintiff argues that “[t]he ALJ failed to support his
determination that [Plaintiff's] severe impairments did
not meet the Listings with substantial evidence and failed to
demonstrate application of the correct legal standard.”
Brief [#13] at 4-5. Second, Plaintiff argues that
her “symptoms from her bilateral knee arthroplasty
meet, equal or exceed the criteria for Listing 1.03:
reconstructive surgery or surgical arthrodesis of a major
weight-bearing joint.” Id. at 6-7. Third,
Plaintiff argues that “[t]he ALJ ignored relevant law
and erred by failing to consider each of [Plaintiff's]
impairments in combination.” Id. at 7-8.
Fourth, Plaintiff argues that the “RFC fails to account
for all of [Plaintiff's] impairments, including a failure
to accurately assess mental health diagnoses and associated
limitations.” Id. at 8-10. The Court addresses
each argument in turn.
Step Three: The Listings
three of his decision, the ALJ stated in part:
Specifically, listing 1.02 addressing major dysfunction of
joints was considered. The listing requires gross anatomical
deformity and chronic joint pain and stiffness with signs of
limitation of motion or other abnormal motion of the affected
joints and findings on appropriate medically acceptable
imaging of joint space narrowing, bony destruction, or
ankylosis of the affected joints. The listing also requires
the inability to ambulate effectively [on] a weight-bearing
joint or the inability of one of the major peripheral joints
in each upper extremity to perform fine and gross movements
effectively. In this case, the available medical ...