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Vigil v. Berryhill

United States District Court, D. Colorado

May 14, 2019

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         Plaintiff Cindy Lou Vigil appeals from the Social Security Administration (“SSA”) Commissioner's final decision denying her application for disability insurance benefits (“DIB”), filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-33, and her application for supplemental security income benefits (“SSI”), filed pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83c. Jurisdiction is proper under 42 U.S.C. § 405(g). The Court finds the ALJ did not err by not specifically addressing the effects of Ms. Vigil's obesity when he formulated her residual functional capacity (“RFC”). In addition, the ALJ appropriately considered the effects of Ms. Vigil's subjective symptoms in his determination of her RFC. Finally, the ALJ properly applied the treating physician rule. Accordingly, the Court affirms the ALJ's decision that Ms. Vigil was not disabled from October 20, 2015, through the date of the decision.


         I. Ms. Vigil's Conditions

         Plaintiff Cindy Lou Vigil was born on October 20, 1965; she was forty-nine years old when she filed her application for DIB and SSI. [AR 170, 176] She originally indicated she became disabled on February 23, 2015, [AR 177] but later amended her alleged onset date to October 20, 2015. [AR 47]

         The record does not suggest any individual event triggered Ms. Vigil's alleged disability. From April 2014 to January 2015, she frequently visited her treating physician, Dr. Clandra Robinson, at Salud Family Health Centers. During this time, Ms. Vigil was treated for a number of conditions, including an abscess, [AR 431, 434] diabetes, [AR 42, 422, 427] and influenza. [AR 402] Then, from February 2015 to July 2016, the record does not indicate she required regular medical treatment.

         In July 2016, Ms. Vigil began experiencing abdominal pain, which soon culminated in a diagnosis of a hernia and a cirrhotic liver. [AR 578] On August 17, 2016, Ryan Gerry, M.D., performed a hernia repair surgery with mesh. [AR 653] About three weeks later, Ms. Vigil required another procedure, because the postoperative wound had become infected. [AR 490] On September 8, 2016, she underwent a procedure to have the infected mesh removed and an abdominal wall abscess drained. [AR 499] She was discharged from the hospital on September 14, 2016. [Id.] Ms. Vigil was monitored during her post-operation recovery in home health care. See, e.g., [AR 796, 833, 841, 876, 906, 955, 980] On December 14, 2016, Brittani Nelson, RN, concluded the wound was healed and further home health care was no longer necessary. [AR 1023]

         On May 26, 2017, Dr. Robinson completed a Physical Residual Functional Capacity Questionnaire that summarized her assessment of Ms. Vigil's physical capabilities. [AR 1063-67] Dr. Robinson stated Ms. Vigil had diagnosed conditions of cirrhosis of the liver, diabetes mellitus, obstructive sleep apnea, hypertension, chronic pain disorder, and obesity. [AR 1063] She opined that Ms. Vigil could walk a maximum of one block before needing to rest, sit for forty-five minutes at a time before needing to change positions, and stand for a maximum of five minutes before needing to sit down. [AR 1064] She also stated that Ms. Vigil could sit for a maximum of two hours and stand for less than two hours in an eight-hour workday. [AR 1065] Addressing physical restrictions, Dr. Robinson stated Ms. Vigil could use her hands and arms less than 5% of a workday. [Id.] She concluded by stating Ms. Vigil had been limited to these maximums since 2015. [AR 1067]

         II. Procedural History

         On May 4, 2015, the SSA initially denied her application for DIB and SSI. [AR 104-07] Ms. Vigil subsequently requested a hearing before an ALJ, which took place on June 8, 2017. [AR 43, 112] On June 29, 2017, the ALJ issued an opinion holding that Ms. Vigil is not disabled. [AR 20-35] According to the ALJ, Ms. Vigil's diagnosed conditions of residuals of hernia repair surgery, peripheral neuropathy, diabetes mellitus, obesity, and depression were severe impairments, but did not meet the severity of any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [AR 26-28] The ALJ also held that while Ms. Vigil was no longer able to perform any of her past relevant work, she maintained an RFC that allowed her to perform work that exists in the national economy. [AR 32-34]

         The SSA Appeals Council denied Ms. Vigil's request for review on April 30, 2018, making the SSA Commissioner's denial final for the purpose of judicial review. [AR 1-4]; see 20 C.F.R. § 416.1481 (“The Appeals Council's decision, or the decision of the administrative law judge if the request for review is denied, is binding unless you or another party file an action in Federal district court, or the decision is revised.”). Ms. Vigil timely appealed the ALJ/Commissioner's final decision to this Court. ECF No. 1.

         III. Hearing Testimony

         At the hearing held before the ALJ on June 8, 2017, [AR 43-72] Ms. Vigil and a vocational expert (“VE”) testified. [AR 43] The ALJ first questioned Ms. Vigil about her work history. She stated she had previously worked handling patient records and accounts receivable, as a purchasing agent, and as a social worker. [AR 49-50]

         The ALJ then then inquired about her employment at Greenleaf Wholesale Florist, where she worked from 2015 to 2016 in accounts receivable. See [AR 50-53] Ms. Vigil testified that she made approximately $3, 600 in the last quarter of 2015, which was after her amended date of initial disability on October 20, 2015. [AR 50] She stated that she worked at Greenleaf until the company laid her off in July 2016. [AR 51, 53] After that, she looked for work until she required hernia surgery in August 2016. [AR 53] She testified that when she had recovered from the surgery and subsequent infection, she was no longer able to work due to constant fatigue and chronic pain in her hands, feet, neck, and back. [Id.]

         The ALJ also asked Ms. Vigil about her pursuit of a master's degree during the same period. Ms. Vigil testified she had been in a master's program part time for four to five years, working toward a degree in criminal justice and vocational rehabilitation. [AR 56, 65] She stated she was registered to attend fall class in 2016 but had to withdraw due to her medical conditions. [AR 54-55] Still, she took the comprehensive exam to receive the degree in June 2017 but did not pass. [AR 55]

         Ms. Vigil next testified about how her conditions affect her mental and physical capabilities. [AR 56-64] She stated that her hepatic encephalopathy caused her thinking to be “confused” and “sketchy.” [AR 56-57] She stated she could not maintain concentration during a two-hour movie. [Id.] Additionally, she had reduced strength and numbness in her upper extremities due to idiopathic peripheral neuropathy; she did not have enough strength to open a jar of pickles and could not operate buttons or zippers; she only had the strength to perform a job that required her to lift two to three pounds for a third of an eight-hour workday; she could walk a maximum of one block before she would need to stop and rest; and she could sit in a desk chair or stand in one place for a maximum of ten minutes before she would need to take a break. [AR 57-59]

         Ms. Vigil said she suffered from depression, which decreased her energy level and appetite and kept her from wanting to participate in activities. [AR 59-60] She also testified that she experienced anxiety that affected her ability to concentrate and kept her from sleeping for more than two hours at a time. [AR 60-61]

         Ms. Vigil discussed her ability to do routine tasks around the house. She stated she could hand wash dishes “over a period of time” and do small loads of laundry. [AR 61] She said that she could perform these tasks for about ten minutes before she would need to take a fifteen-minute break. [AR 62] She testified that she could not cook, vacuum, or perform yardwork. [AR 61-62] Ms. Vigil stated that when her symptoms were low, she would have the energy to go to the grocery store or play with her grandkids. [AR 64]

         The ALJ then turned to the VE, who testified that an individual with Ms. Vigil's age, education, work experience, and the following limitations-a maximum of light work; no assembly line work; and occasionally stoop, kneel, crouch, crawl, climb stairs, and balance-could not perform her past work of accounting clerk, supply clerk, and case worker but could perform the jobs of cashier, housekeeping maid, and mail clerk. [AR 66-67] With the additional limitations of frequent handling and fingering, the person could still perform those jobs. [AR 67] The VE testified that there are no jobs in the economy for such a person who is off task more than 10% of the time. [Id.] A person with only the first set of limitations but was also restricted to occasional bilateral handling, fingering, and feeling could not perform the jobs of cashier, housekeeping maid, and mail clerk but could perform the jobs of counter clerk, furniture rental clerk, and investigator of dealer accounts. [Id.] A person who also could only stand or walk for two hours and sit for six hours in an eight-hour workday could not perform any job in the national economy. [AR 68-69] Also, no work would be available for such a person at the sedentary level. [AR 69] The ALJ issued an unfavorable decision on May 5, 2015. [AR 23-35]


         I. SSA's Five-Step Process for Determining Disability

         Here, the Court will review the ALJ's application of the five-step sequential evaluation process used to determine whether an adult claimant is “disabled” under Title II of the Social Security Act, which is generally defined 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 ...

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