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Harsch v. Berryhill

United States District Court, D. Colorado

January 22, 2019

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.



         The government determined that Plaintiff Kristen Elain Harsch is not disabled for purposes of the Social Security Act. (AR[1] 32.) Ms. Harsch 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. #12.)

         Standard of Review

         In Social Security appeals, the Court reviews the decision of the administrative law judge (“ALJ”) 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. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).


         At the second step of the Commissioner's five-step sequence for making determinations, [2] the ALJ found that Ms. Harsch “has the following severe impairments: obesity; arthritis; depression; panic disorder; and substance abuse disorder.” (AR 23.) The ALJ then determined at step three that Ms. Harsch “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments” in the regulations. (AR 14.) The ALJ found Ms. Harsch's posttraumatic stress disorder (“PTSD”), attention deficit hyperactivity disorder (“ADHD”), and asthma to be non-severe impairments. (Id.) Because she concluded that Ms. Harsch did not have an impairment or combination of impairments that meets the severity of the listed impairments, the ALJ found that Ms. Harsch has the following residual functional capacity (“RFC”):

. . . [Ms. Harsch] has the residual functional capacity to perform light work . . . with the following abilities and limitations: the claimant can occasionally climb ramps and stairs, but is unable to climb ladders, ropes, or scaffolds; the claimant can occasionally balance, stoop, kneel crouch, and crawl; the claimant must avoid hazards such as unprotected heights and dangerous moving machinery; the claimant can perform no more than simple, routine work that is low stress (which is defined as involving no more than occasional decision making and no more than occasional adapting to change); the claimant cannot have any fast paced production quotas; and the claimant can have no more than occasional contact with the public and coworkers.

(AR 24-25.) The ALJ noted that Ms. Harsch has no past relevant work. (AR 30.) The ALJ concluded that, considering Ms. Harsch's age, education, work experience, and RFC, Ms. Harsch “is capable of making a successful adjustment to other work that exists in significant number in the national economy.” (AR 31.) Accordingly, Ms. Harsch was deemed not to have been under a disability from the alleged onset date of October 1, 2003. (AR 32.)

         Ms. Harsch asserts two reversible errors. First, she argues that the ALJ improperly assessed the credibility and consistency of Ms. Harsch's statements with the medical evidence in violation of SSR 16-3p. Second, she claims that the ALJ improperly weighed the opinion evidence in violation of 20 C.F.R. § 404.1527(d) and 20 C.F.R. § 416.927(d). (Dkt. #16 at 2.) As these two issues are intertwined, the Court will address them together.


         Ms. Harsch argues that the ALJ committed reversible errors in her credibility determinations and in weighing medical opinion evidence. The Court disagrees for reasons set forth below.

         Ms. Harsch claims that the ALJ ignored relevant evidence in the record and Ms. Harsch's subjective statements regarding her physical and mental impairments. In considering the intensity, persistence, and limiting effects of a claimant's symptoms, the ALJ must “examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Soc. Sec. Ruling 16-3p Titles II & Xvi: Evaluation of Symptoms in Disability Claims, SSR 16-3P (S.S.A. Oct. 25, 2017). In assessing a claimant's statements about her symptoms, the ALJ “will evaluate whether the statements are consistent with objective medical evidence and the other evidence.” Id. “Credibility determinations are peculiarly the province of the finder of fact, ” and the Court will “not upset such determinations when supported by substantial evidence.” Newbold v. Colvin, 718 F.3d 1257, 1267 (10th Cir. 2013) (internal quotation marks omitted). “However, findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.” Id.

         As Ms. Harsch notes, the framework for the proper analysis of evidence of pain is set out in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). The Court must consider (1) whether Ms. Harsch established a pain-producing impairment by objective medical evidence; (2) if so, whether there is a “loose nexus” between the proven impairment and Ms. Harsch's subjective allegations of pain; and (3) if so, whether, considering all the evidence, both objective and subjective, her pain is in fact disabling. Id. at 163-64. See also Branum v. Barnhart, 385 F.3d 1268, 1273 (10th Cir. 2004). In determining whether Ms. Harsch's subjective complaints are credible, the ALJ should consider various factors, such as:

the levels of medication and their effectiveness, the extensiveness of the attempts (medical or nonmedical) to obtain relief, the frequency of medical contacts, the nature of daily activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ, the motivation of and relationship between the claimant and other witnesses, ...

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