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Grass v. Berryhill

United States District Court, D. Colorado

April 2, 2019

RUTH FAY GRASS, Plaintiff,
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.



         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.


         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.


         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 ...

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