United States District Court, D. Colorado
ORDER
MICHAEL E. HEGARTY UNITED STATES MAGISTRATE JUDGE.
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.
BACKGROUND
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]
LEGAL
STANDARDS
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
...