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Ritter v. Commissioner, Social Security Administration

United States District Court, D. Colorado

December 16, 2019




         This civil action arises under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-33, for review of the Commissioner of the Social Security Administration's (“Commissioner” or “Defendant”) final decision denying Plaintiff Steven Ritter's (“Plaintiff” or “Mr. Ritter”) application for Disability Insurance Benefits (“DIB”). Pursuant to the Parties' consent [#14], this civil action was referred to this Magistrate Judge for a decision on the merits. See [#22]; 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 respectfully AFFIRMS the Commissioner's decision.


         An individual is eligible for DIB benefits under the Act if he is insured, has not attained retirement age, has filed an application for DIB, and is under a disability as defined in the Act. 42 U.S.C. § 423(a)(1). An individual is determined to be under a disability only if her “physical or mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . .” 42 U.S.C. § 423(d)(2)(A). The disabling impairment must last, or be expected to last, for at least 12 consecutive months. See Barnhart v. Walton, 535 U.S. 212, 214-15 (2002). Additionally, the claimant must prove she was disabled prior to her date last insured. Flaherty v. Astrue, 515 F.3d 1067, 1069 (10th Cir. 2007).

         The Commissioner has developed a five-step evaluation process for determining whether a claimant is disabled under the Act. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). These include:

1. Whether the claimant has engaged in substantial gainful activity;
2. Whether the claimant has a medically severe impairment or combination of impairments;
3. Whether the claimant has an impairment that meets or medically equals any listing found at Title 20, Chapter III, Part 404, Subpart P, Appendix 1;
4. Whether the claimant has the Residual Functional Capacity (“RFC”) to perform her past relevant work; and
5. Whether the claimant can perform work that exists in the national economy, considering the claimant's RFC, age, education, and work experience.

See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). See also Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (describing the five steps in detail). “The claimant bears the burden of proof through step four of the analysis[, ]” while the Commissioner bears the burden of proof at step five. Neilson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993). “If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (internal quotation marks omitted).

         In reviewing the Commissioner's final decision, the court limits its inquiry to whether substantial evidence supports the final decision and whether the Commissioner applied the correct legal standards. See Vallejo v. Berryhill, 849 F.3d 951, 954 (10th Cir. 2017). “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, 515 F.3d at 1070 (internal citation omitted); accord Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) (“Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.”). “But in making this determination, [the court] cannot reweigh the evidence or substitute [its] judgment for the administrative law judge's.” Smith v. Colvin, 821 F.3d 1264, 1266 (10th Cir. 2016).


         I. Background

         A. Medical History

         Mr. Ritter, born on February 20, 1955, alleges he became disabled on August 16, 2015, at 60 years and 5 months of age, due to secondary polycythemia, chronic obstructive pulmonary disease (“COPD”), vascular disease, and claudication. See [#12-3 at 68-69; #12-6 at 158, 162].[1]Because Mr. Ritter focuses his appeal solely on his extreme fatigue, caused by his secondary polycythemia and COPD, the court limits its discussion of the relevant medical evidence to these ailments.

         Mr. Ritter suffers from both secondary polycythemia and COPD, both of which cause extreme fatigue. [#12-9 at 369; #12-10 at 489]. In February 2015, at a follow-up visit, physician John Burke, MD (“Dr. Burke”) noted Mr. Ritter as having general fatigue, though Mr. Ritter denied sleep dysfunction. [#12-9 at 388-89]. In his physical exam, Dr. Burke labeled Plaintiff as “awake, alert, and oriented.” [Id. at 389]. A few months later, on August 13, 2015, Mr. Ritter saw his cardiologist following an emergency room visit due to increased shortness of breath and lightheaded dizziness. [#12-8 at 357]. Treatment notes stated that Mr. Ritter denied feeling lightheaded or dizzy and was “not feeling tired (fatigue).” [Id.]. The doctor noted that his condition was stable from a cardiac standpoint. [Id. at 358]. About a week later when seeing Dr. Burke for a follow up visit, Dr. Burke noted that Mr. Ritter still suffered from fatigue, though his physical exam indicated that Mr. Ritter was “awake, alert, and oriented.” [#12-9 at 385-86]. Mr. Ritter once again denied sleep dysfunction. [Id.]

         In November 2015, Dr. Burke noted that Mr. Ritter “continues to complain of fatigue but denies other complaints” and that Mr. Ritter's generalized fatigue had improved. [#12-9 at 380-81]. While there were still several instances from late 2015 through early 2016 when fatigue was included on Mr. Ritter's problem list, there was no sign of lack of sleep. [Id. at 371, 378, 384].

         At one of Plaintiff's routine visits with Dr. Burke on February 3, 2016, his physical exam reflected that he was able to carry on normal activity. [#12-9 at 370]. Although fatigue was still noted on the problem list, Dr. Burke wrote that he was “not really convinced that he has polycythemia vera. Given the negative molecular testing (repeatedly), lack of convincing marrow findings, and alternative explanation in the form of heavy smoking and emphysema, I think that this is likely secondary polycythemia.” [Id. at 371]. As for the plan for Plaintiff, Dr. Burke wrote that he believed the polycythemia is secondary to Plaintiff's COPD and encouraged him to quit smoking. [Id.].

         On February 29, 2016, while receiving treatment with his hematologist, Mr. Ritter reported “that he is actually doing well.” [#12-15 at 668]. Treatment notes revealed that Mr. Ritter denied weight loss, fever, chills, weakness, or fatigue. [Id.]. The following month, at a follow-up visit, treatment notes revealed that Mr. Ritter reported that he was “doing well without acute complaints” despite earlier findings of fatigue. [Id. at 672]. In September 2016, Mr. Ritter's hematologist noted fatigue and that Mr. Ritter was waking up two-to-three times per night to use the restroom. [#12-17 at 765]. In October 2016, Mr. Ritter's hematologist again noted fatigue. [Id. at 739]. But in November 2016, Mr. Ritter's urologist noted that fatigue was not present. [Id. at 729].

         In February 2017, Plaintiff returned to his cardiologist for a follow up appointment, and treatment notes indicated no unusual fatigue, that Mr. Ritter was alert, and that Mr. Ritter could still walk about half of a block before his legs cramped. [#12-17 at 723-24]. In June 2017, Mr. Ritter's urologist noted Plaintiff as being healthy. [Id. at 720]. Shortly after, in July 2017, Mr. Ritter saw his oncologist who noted that Plaintiff was “feeling great” and that he denied dizziness and lightheadedness. [#12-18 at 835]. Later that year, in October 2017, Plaintiff complained of new pain in his right buttocks and lower legs as well as shortness of breath and the feeling of being tired and sluggish. [#12-20 at 906]. Treatment notes, however, revealed that Plaintiff had “no true rest pain symptoms.” [Id. at 905].

         B. ...

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