United States District Court, D. Colorado
MICHELLE L. VASQUEZ, Plaintiff,
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge
civil action arises under Title II of the Social Security Act
(“Act”), 42 U.S.C. §§ 401- 33 for
review of the Commissioner of Social Security
Administration's (“Commissioner” or
“Defendant”) final decision denying Plaintiff
Michelle L. Vasquez's (“Plaintiff” or
“Ms. Vasquez”) application for Disability
Insurance Benefits (“DIB”) and Supplemental
Social Security Income Benefits (“SSI”). Pursuant
to the Parties' consent [#13], this civil action was
referred to this Magistrate Judge for a decision on the
merits. See [#18]; 28 U.S.C. § 636(c);
Fed.R.Civ.P. 73; D.C.COLO.LCivR 72.2. Upon review of the
Parties' briefing, the entire case file, the
Administrative Record, and the applicable case law, this
court REVERSES the Commissioner's
decision and REMANDS for further
the second time Plaintiff Michelle Vasquez comes before the
court seeking review of an ALJ's decision denying her
benefits. Ms. Vasquez first filed for DIB and SSI benefits on
June 30, 2011, with an alleged disability onset date of April
30, 2011. [#11-12 at 583]. The ALJ denied her request and she
appealed to this court which reversed and remanded for
further proceedings. Vasquez v. Colvin, No.
14-CV-01198-MEH, 2015 WL 1186737 (D. Colo. Mar. 11, 2015). On
remand, this matter then went before the present ALJ who held
a hearing on November 3, 2016 (where Ms. Vasquez amended her
alleged date of onset to May 31, 2011) and issued a denial on
January 13, 2017. [#11-12 at 580, 607]. The Appeals Council
then denied review on June 27, 2018. [Id. at 571].
On August 3, 2018, Plaintiff commenced the present matter,
once again asking a court in this District to review the
denial of benefits. [#1].
record before the ALJ reflects information regarding
Plaintiff's severe physical and mental limitations for
diabetes, neuropathy, kidney dysfunction, degenerative joint
disease, anxiety, and depression. [#11-12 at 586].
Specifically, as relevant for present purposes, the ALJ had
before her evidence regarding: (1) Plaintiff's
self-reported daily activities and limitations; (2) the
opinion of treating physician Dr. David Neece; (3) the
opinion of treating physician-podiatrist Dr. Gordon Rheume;
(4) the opinion of the Commissioner's consultative
examining physician, Dr. Adam Summerlin; (5) the State agency
non-examining physician, Dr. Alan Ketelhohn, M.D.; (7) the
state agency non-examining psychologist, MaryAnn Wharry. On
appeal, Ms. Vasquez identifies the following flaws with the
(1) The ALJ gave weight to Dr. Neece's opinion of mental
limitations but failed to account for them in the RFC
(2) The ALJ denied controlling weight to Dr. Neece's
opinion of physical restrictions but failed to determine
whether it was still entitled to some other quantum of
(3) The ALJ did not have valid reasons for rejecting Dr.
Rheume's opinion of physical restrictions.
[#15 at 4]. As relief, Plaintiff requests an immediate award
rather than a remand for another hearing. [Id.].
Because Ms. Vasquez's overall records give important
context to the issues on appeal, this court discusses them
David Neece provided opinions as to Plaintiff's physical
and mental disability. Dr. Neece filed two Med-9 Forms,
finding that Plaintiff was disabled although the handwritten
record is largely illegible. [#11-10 at 489-91]. Dr. Neece,
in a letter to Plaintiff's counsel, stated that Plaintiff
needed to elevate her feet above the heart 2-3 times a day
for 15-30 minutes and needed to lie down for 15 minutes every
two hours. [#11-11 at 539-40]. When asked if Plaintiff was
capable of doing full-time work, Dr. Neece stated that it
“depends on the type of work” but later on that
same page states that Ms. Vasquez was “unable to
work” in response to a query whether she was
“prevented [from doing] full time work.”
[Id. at 540]. In a record dated March 11, 2013, Dr.
Neece further opined that Ms. Vasquez was “completely
disabled from being able to resume previous work
requirements.” [Id. at 569-70].
Neece also completed a Residual Functional Capacity
(“RFC”) evaluation. [Id. at 498]. In it,
Dr. Neece found that Plaintiff had a “marked”
inability to “complete a normal workday” due to
her depression and anxiety and that she would be off-task for
30% of the workweek given the same. [Id. at 499,
500]. As to her physical limitations, Dr. Neece reported that
she could sit for thirty minutes at a time and ten hours out
of an eight-hour workday. [Id. at 501]. Ms. Vasquez
could be on her feet for an hour at a time for a total of
eight hours in an eight-hour day. [Id.]. Despite
this, Dr. Neece opined that Ms. Vasquez needed to elevate her
feet for 15 minutes every 2-3 hours-this time merely level as
opposed to above her heart-and needed to lie down for fifteen
minutes every two hours. [Id. at 502, 503].
Gordon Rheume, a podiatrist, provided a brief opinion on
Plaintiff's physical disability. [Id. at 568].
Dr. Rheume stated that Ms. Vasquez could only stand for
thirty minutes at a time and could only stand for one or two
hours total a day in these thirty-minute intervals.
[Id.]. Dr. Rheume based this opinion on
Plaintiff's complaints; while he references her diagnosis
of neuropathy, the opinion is otherwise only supported by
Plaintiff's own recounting of her ailment.
Summerlin and Ketelhohn also provided opinions. Dr. Summerlin
provided a consultative examination in which he stated that
Plaintiff could stand and sit for up to six hours, lift
twenty-five pounds frequently and fifty pounds frequently,
and should be limited to occasionally working around
unprotected heights. [Id. at 527]. Dr. Ketelhohn, a
non-examining physician, opined that Plaintiff was limited to
light work. [#11-3 at 62].
own part, Plaintiff states that she takes part in a wide
range of daily activity. She conducts self-care and basic
hygiene, but requires a chair in the shower and wears a
limited array of easy-to-put on clothes. [#11-6 at 201]. She
cooks her own meals, but her impairments limit her to cooking
in brief intervals, with help, and usually only frozen meals
or soup which takes about ten minutes. [Id. at 202].
She cleans and does household work, but doing the dishes
takes her an hour because she cannot stand for long enough to
complete the task in one session. [Id.]. She goes
out to shop at 7-11 once a month, but cannot drive herself
and spends only thirty or so minutes shopping. [Id.
at 203]. She reports that “all she do[es] is cry”
which impedes her familial and social relations.
[Id. at 205]. She has a son who was severely
disabled in a car accident, and she has been helping him do
paperwork for his divorce. [#11-11 at 541].
with these often-conflicting opinions, the ALJ determined
that Plaintiff was not disabled, rejecting Dr. Neece's
opinion and assigning little weight to Dr. Rheume's. The
Appeals Council denied review, and Plaintiff now seeks this
court's review. [#11-12 at 571].
Standard Of Review
reviewing the Commissioner's final decision, the court is
limited to determining whether the decision adheres to
applicable legal standards and is supported by substantial
evidence in the record as a whole. Berna v. Chater,
101 F.3d 631, 632 (10th Cir. 1996) (citation omitted);
cf. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th
Cir. 1993) (“[I]f the ALJ failed to apply the correct
legal test, there is a ground for reversal apart from a lack
of substantial evidence.” (internal citation omitted)).
The court may not reverse an ALJ simply because she may have
reached a different result based on the record; the question
instead is whether there is substantial evidence showing that
the ALJ was justified in her decision. See Ellison v.
Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).
“Substantial evidence is more than a mere scintilla and
is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Flaherty v.
Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (internal
citation omitted). But “[e]vidence is not substantial
if it is overwhelmed by other evidence in the record or
constitutes mere conclusion.” Musgrave v.
Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) (internal
citation omitted). The court may not “reweigh the
evidence or retry the case, ” but must
“meticulously examine the record as a whole, including
anything that may undercut or detract from the ALJ's
findings in order to determine if the substantiality test has
been met.” Flaherty, 515 F.3d at 1070
(internal citation omitted).