United States District Court, D. Colorado
ORDER
SCOTT
T. VARHOLAK UNITED STATES MAGISTRATE JUDGE.
Magistrate
Judge Scott T. Varholak This matter is before the Court on
Plaintiff Ruth Fay Grass's Complaint seeking review of
the Commissioner of Social Security's decision denying
Plaintiff's application for disability insurance benefits
(“DIB”) and supplemental security income
(“SSI”) under Titles II and XVI of the Social
Security Act (“SSA”), 42 U.S.C. §§ 401
et seq., and 1381-83c, respectively. [#1] The
parties have both consented to proceed before this Court for
all proceedings, including the entry of final judgment,
pursuant to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2.
[#23] The Court has jurisdiction to review the
Commissioner's final decision pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3). This Court has carefully
considered the Complaint [#1], the Social Security
Administrative Record [#18, 20, 26, 27], the parties'
briefing [#28, 29, 30], and the applicable case law, and has
determined that oral argument would not materially assist in
the disposition of this appeal. For the following reasons,
the Court REVERSES the Commissioner's
decision and REMANDS for further
proceedings.
I.
LEGAL STANDARD
A.
Five-Step Process for Determining Disability
The
Social Security Act defines disability as the inability
“to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period
of not less than 12 months.”[2] 42 U.S.C. §§
423(d)(1)(A), 1382c(a)(3)(A); Lax v. Astrue, 489
F.3d 1080, 1084 (10th Cir. 2007). “This twelve-month
duration requirement applies to the claimant's inability
to engage in any substantial gainful activity, and not just
his underlying impairment.” Lax, 489 F.3d at
1084. “In determining whether an individual's
physical or mental impairment or impairments are of a
sufficient medical severity that such impairment or
impairments could be the basis of eligibility . . ., the
Commissioner [ ] shall consider the combined effect of all of
the individual's impairments without regard to whether
any such impairment, if considered separately, would be of
such severity.” 42 U.S.C. §§ 423(d)(2)(B),
1382c(a)(3)(G).
“The
Commissioner is required to follow a five-step sequential
evaluation process to determine whether a claimant is
disabled.” Hackett v. Barnhart, 395 F.3d 1168,
1171 (10th Cir. 2005). The five-step inquiry is as follows:
1. The Commissioner first determines whether the
claimant's work activity, if any, constitutes substantial
gainful activity;
2. If not, the Commissioner then considers the medical
severity of the claimant's mental and physical
impairments to determine whether any impairment or
combination of impairments is
“severe;”[3]
3. If so, the Commissioner then must consider whether any of
the severe impairment(s) meet or exceed a listed impairment
in the appendix of the regulations;
4. If not, the Commissioner next must determine whether the
claimant's residual functional capacity
(“RFC”)-i.e., the functional capacity
the claimant retains despite his impairments-is sufficient to
allow the claimant to perform his past relevant work, if any;
5. If not, the Commissioner finally must determine whether
the claimant's RFC, age, education and work experience
are sufficient to permit the claimant to perform other work
in the national economy.
See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4); Grogan v. Barnhart, 399 F.3d 1257,
1261 (10th Cir. 2005); Bailey v. Berryhill, 250
F.Supp.3d 782, 784 (D. Colo. 2017). The claimant bears the
burden of establishing a prima facie case of
disability at steps one through four, after which the burden
shifts to the Commissioner at step five to show that claimant
retains the ability to perform work in the national economy.
Wells v. Colvin, 727 F.3d 1061, 1064 n.1 (10th Cir.
2013); Lax, 489 F.3d at 1084. “A finding that
the claimant is disabled or not disabled at any point in the
five-step review is conclusive and terminates the
analysis.” Ryan v. Colvin, 214 F.Supp.3d 1015,
1018 (D. Colo. 2016) (citing Casias v. Sec'y of
Health & Human Servs., 933 F.2d 799, 801 (10th Cir.
1991)).
B.
Standard of Review
In
reviewing the Commissioner's decision, the Court's
review is limited to a determination of “whether the
Commissioner applied the correct legal standards and whether
her factual findings are supported by substantial
evidence.” Vallejo v. Berryhill, 849 F.3d 951,
954 (10th Cir. 2017) (citing Nguyen v. Shalala, 43
F.3d 1400, 1402 (10th Cir. 1994)). “With regard to the
law, reversal may be appropriate when [the Commissioner]
either applies an incorrect legal standard or fails to
demonstrate reliance on the correct legal standards.”
Bailey, 250 F.Supp.3d at 784 (citing Winfrey v.
Chater, 92 F.3d 1017, 1019 (10th Cir.1996)).
“Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. It requires more
than a scintilla, but less than a preponderance.”
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009)
(quoting Lax, 489 F.3d at 1084). “Evidence is
not substantial if it is overwhelmed by other evidence in the
record or constitutes mere conclusion.”
Grogan, 399 F.3d at 1261-62 (quoting Musgrave v.
Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992)). The
Court must “meticulously examine the record as a whole,
including anything that may undercut or detract from the
[Commissioner's] findings in order to determine if the
substantiality test has been met.'” Flaherty v.
Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (quotation
omitted). The Court, however, “will not reweigh the
evidence or substitute [its] judgment for the
Commissioner's.” Hackett, 395 F.3d at
1172.
II.
BACKGROUND
Plaintiff
was born in 1962. [AR 270, 1058, 1074][4] Plaintiff
completed two years of college education and obtained an
associate's degree in business administration. [AR 350,
1074] Plaintiff can communicate in English. [AR 348, 1074-77,
1082-92, 1097-1105] On or about February 8, 2013, Plaintiff
completed a Title II application for DIB [AR 270-73] and, on
or about March 18, 2013, Plaintiff completed a Title XVI
application for SSI [AR 1058-63]. Plaintiff originally
claimed a disability onset date of July 1, 2011 [AR 270,
1058], but subsequently amended that date to November 20,
2012 [AR 297]. [See also AR 1072] Thus Plaintiff was
50 years old at the time of the amended alleged onset date.
[Id.] Plaintiff claims disability based upon the
following physical impairments: chronic abdominal pain, knee
problems resulting in knee replacements, arthritis, carpal
tunnel, degenerative changes to the lumbar spine, shoulder
pain, and obesity. [AR 29, 349, 1082, 1102] With the
exception of 2001 when Plaintiff was caring for her mother,
Plaintiff worked full time between 1999 and 2011 in a variety
of office positions, handling procurement bookkeeping,
reception, and customer service. [AR 351, 1075-77] Plaintiff
also worked as a car detailer and salesperson during this
time. [AR 1077] ¶ 2012, Plaintiff worked at a feed lot,
but was let go after approximately three weeks because the
employer said she “couldn't handle the job.”
[Id.]
A.
Medical Background
1.
Abdominal Pain
Plaintiff
has chronic abdominal pain dating back to at least 1998.
[See, e.g., AR 465-66, 473, 527, 579, 608, 738, 766]
A medical record from September 28, 2010 (approximately two
years prior to the alleged onset date) reflects that
Plaintiff reported recurrent abdominal pain that required her
to manually manipulate her abdominal wall to affect gut
motility. [AR 579] The record notes that Plaintiff has
“a long history of abdominal wall hernias” and
had undergone multiple surgeries, including a cesarean
section, an appendectomy, umbilical hernia repair, total
abdominal hysterectomy with bilaterally salpingo
oophorectomy, cholecystectomy, incisional hernia repairs, and
panniculectomy. [Id.] In December 2010, Plaintiff
had another surgery to remove a ventral hernia. [AR 647]
At a
December 2012 medical appointment, Plaintiff reported that
she continued to have “deep and constant pain” in
her abdomen and reported her pain level as a five out of 10.
[AR 665] Plaintiff reported that she had undergone 17
abdominal surgeries in the past. [Id.] An
examination of her abdomen revealed that it was normal in
appearance and negative for tenderness. [AR 667]
Plaintiff's prescription for Tramadol, which she had been
taking for over a year for her abdominal pain, was renewed.
[Id.]
Plaintiff
saw her doctor for abdominal pain on June 3, 2013 and a CT of
her abdomen was ordered. [AR 743-44] The CT did not reveal
any abnormal masses, fluid collection, adenopathy,
inflammatory process, or free air. [AR 747] At an October 21,
2013 medical visit, Plaintiff reported that she continued to
experience abdominal pain, which she described as
“unbearable” without the use of tramadol. [AR
772] At a November 14, 2013 appointment, Plaintiff informed
the medical provider that she manually manipulates her
abdomen a few times each day to decrease pain, which she
stated had nothing to do with bowel movements. [AR 783] The
doctor assured her that she could not harm herself by doing
this and stated that he would be willing to provide a note to
an employer stating that it was related to her medical
condition. [AR 783-84] On November 23, 2013, Plaintiff's
doctor provided her a note stating that Plaintiff “has
a medical condition that requires her to have a break every
hour for 5 to 10 minutes while she is working.” [AR
796]
On
January 16, 2014, Plaintiff was seen for abdominal pain and
burning and reported that she had more persistent pain than
usual in the prior week. [AR 797] Upon examination, the
doctor found no evidence of a new hernia but noted that
Plaintiff was tender in the epigastrium to the left upper
quadrant and determined that the issue was likely peptic in
nature. [Id.] On April 30, 2014, Plaintiff reported
worsening abdominal pain in her left lower quadrant and mid
lower quadrant, which is improved somewhat through manual
manipulation. [AR 815] At a July 11, 2014 appointment,
Plaintiff reported that her abdomen pain was doing better and
an exam did not reflect any tenderness or any palpated
abdominal masses. [AR 857, 860]
On
September 5, 2014, Plaintiff went to the emergency room for
abdominal pain, informing the medical provider that she was
having significant pain in the left upper quadrant and that
manipulation of her stomach was not reducing the pain as it
usually did. [AR 866] Plaintiff reported her pain as a seven
out of 10. [AR 867] At a follow-up on September 26, 2014,
Plaintiff reported that her abdominal pain was so severe that
she is overwhelmed by it and that it was preventing her from
sleeping. [AR 879] Plaintiff was prescribed a
gastrointestinal cocktail to supplement the tramedol. [AR
882]
On
January 12, 2015, Plaintiff reported severe abdominal pain
that prevented her from sleeping two nights in a row, but the
doctor “c[ould] not see where her pain has clearly
changed.” [AR 952] On February 9, 2015, Plaintiff
reported continued abdominal pain, but it responded well to
medication. [AR 971, 974] On March 25, 2015, Plaintiff again
reported intense abdominal pain that prevented her from
sleeping approximately four nights per week. [AR 983] On
April 27, 2015, Plaintiff reported that her bloating issues
were doing better though she still had pain from time to
time. [AR 992] On July 10, 2015, Plaintiff reported that she
was still having a lot of trouble with abdominal pain and
regularly took tramadol. [AR 997] On August 25, 2015,
Plaintiff visited the emergency room complaining of abdominal
pain. [AR 915] Plaintiff reported constant piercing and
burning pain, which she rated as a seven out of 10.
[Id.] A May 16, 2016 abdominal CT scan was
“essentially normal, ” with no indication of
obstruction or hernias. [AR 1039] The doctor did not believe
further surgery would be likely to alleviate the pain
Plaintiff was experiencing and expressed frustration that
they could not figure out what was causing Plaintiff's
pain. [Id.]
2.
Shoulder Pain
Plaintiff's
records also reflect that Plaintiff has suffered from
shoulder pain. At a medical appointment in September 2010,
Plaintiff reported that she had been experiencing right
should pain for several months. [AR 578] An MRI revealed
significant AC arthrosis, resulting in significant
impingement. [Id.] On November 5, 2010, Plaintiff
had surgery on her right shoulder to treat the impingement.
[AR 650-51]
At an
October 21, 2013 medical visit, Plaintiff reported that she
had been experiencing left shoulder pain for approximately
one week. [AR 772] Upon examination, the doctor found limited
range of motion and mildly positive signs of impingement. [AR
773] On November 4, 2013, Plaintiff was determined to have
mild degenerative changes and impingement in her left
shoulder and was given a steroid injection. [AR 777, 778] At
a follow-up appointment on ...