United States District Court, D. Colorado
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 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
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).
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
1. Whether the claimant has engaged in substantial gainful
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).
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.
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].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.
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.
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,
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.].
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].
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].