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Levan v. Berryhill

United States District Court, D. Colorado

June 3, 2019

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



         An Administrative Law Judge (“ALJ”) concluded that Plaintiff Dana Lynn Davis Levan “has not been under a disability within the meaning of the Social Security Act [the “Act”] from October 9, 2014, through the date of this decision, ” i.e., March 20, 2017. (AR[1] 30.) Ms. Levan has asked this Court to review that decision. The Court has jurisdiction under 42 U.S.C. § 405(g), and both parties have agreed to have this case decided by a U.S. Magistrate Judge under 28 U.S.C. § 636(c). (Dkt. #13.)

         I. Standard of Review

          In Social Security appeals, the Court reviews the ALJ's decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied. See Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007). “Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.” Raymond v. Astrue, 621 F.3d 1269, 1271-72 (10th Cir. 2009) (internal quotation marks omitted). The Court “should, indeed must, exercise common sense” and “cannot insist on technical perfection.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Court cannot reweigh the evidence or its credibility, and it may not substitute its judgment for that of the ALJ. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). Nor may the Court “displace the [ALJ]'s choice between two fairly conflicting views, even though the [C]ourt would justifiably have made a different choice had the matter been before it de novo.” Id. “A finding of “‘no substantial evidence' will be found only where there is a ‘conspicuous absence of credible choices' or ‘no contrary medical evidence.'” Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).

         II. Background

         At the second step of the Commissioner's five-step sequence for making determinations, [2] the ALJ found Ms. Gonzales has the following severe impairments:

fibromyalgia; degenerative joint disease, right knee, status-post total knee arthroplasty and status-post revision quad closure/repair; degenerative joint disease, left knee with history of ACL reconstruction; degenerative disc disease, cervical spine; arthritis, right hand; carpal tunnel syndrome, left, status-post release; migraines; depression; anxiety; alcoholism (20 CFR 404.1520(c) and 416.920(c)).

(AR 32.) The ALJ also found that the “medical record establishes these impairments as severe within the meaning of the Regulations because they cause significant limitations in the claimant's ability to perform basic work activities.” (Id.)

         The ALJ determined that Ms. Levan's additional impairments of osteopenia in the lumbar spine and hepatitis C were non-severe. (AR 33.) The ALJ further noted that Ms. Levan “has sought treatment for a right foot fracture and C. diff colitis, ” but that the “medical record indicates that these conditions resolved or are expected to resolve within 12 months.” (Id.) And she found “nothing in the medical record to indicate that these conditions would cause [more] than minimal work-related limitations or prevent substantial gainful activity for 12 months.” (Id.) Finally, the ALJ found the following to be non-medically determinable impairments because Ms. Levan's medical records did not reflect a diagnosis from an acceptable medical source or by diagnostic evidence: carpal tunnel syndrome, peripheral neuropathy, and obsessive-compulsive disorder. (Id.)

         At step three, the ALJ concluded Ms. Levan's various impairments did not meet the criteria of any listed impairment[3] (see 20 C.F.R. § Pt. 404, Subpart P, App. 1), either singly or in combination. (Id.) In evaluating Ms. Levan's mental impairments, she reviewed the criteria in listings 12.04 (depressive, bipolar, and related disorders), 12.06 (anxiety and obsessive-compulsive disorders), and 12.15 (trauma and stressor-related disorders), and specifically “considered whether the ‘paragraph B' criteria' are satisfied.”[4] (AR 33-34.)

         As the ALJ noted, “[t]o satisfy the ‘paragraph B' criteria, the mental impairments must result in at least one extreme or two marked limitations in a broad area of [mental] functioning.” (AR 34.) There are four applicable areas of mental functioning:

(1) Understand, remember, or apply information;
(2) Interact with others;
(3) Concentrate, persist, or maintain pace; and
(4) Adapt or manage oneself.

(Id., and listings 12.04, 12.06, and 12.15.) The ALJ further explained that “[a] marked limitation means functioning in this area independently, appropriately, effectively, and on a sustained basis is seriously limited, ” and that “[a]n extreme limitation is the inability to function independently, appropriately or effectively, and on a sustained basis.” (AR 34.) The ALJ engaged in a detailed analysis of each of the four areas of mental functioning, taking into consideration the evidence and Ms. Levan's medical records. (Id.)

         First, the ALJ concluded that, with respect to understanding, remembering, or applying information, Ms. Levan has only a mild limitation. (Id.) Although Ms. Levan testified she has difficulty concentrating, the ALJ also considered evidence in Ms. Levan's medical records, including her own self-evaluation, indicating she is able to care for her ...

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