Cordova v. Astrue

Filing 35

ORDER. The December 3, 2007 decision of the Commissioner is reversed and remanded for further proceedings, by Judge Philip A. Brimmer on 6/27/11. (gmssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-00264-PAB
EDNA CORDOVA,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of the Social Security Administration,
Defendant.

ORDER

This matter comes before the Court on plaintiff Edna Cordova’s complaint
[Docket No. 3] filed on February 9, 2010. Plaintiff, through counsel, seeks review of the
final decision of defendant Michael J. Astrue (the “Commissioner”) denying plaintiff’s
claim for disability insurance benefits and supplemental security income under Title II of
the Social Security Act (the “Act”), 42 U.S.C. §§ 401-33. The Court has jurisdiction to
review the Commissioner’s final decision under 42 U.S.C. § 405(g).
I. BACKGROUND
Plaintiff applied for disability benefits on June 13, 2006. She claimed that she
was unable to work due to disability beginning on December 15, 2004. On January 18,
2007, plaintiff’s claim was initially denied and, after a September 13, 2007 hearing,
again denied in a decision by an Administrative Law Judge (“ALJ”) dated December 3,
2007. See R. at 19. In his decision, the ALJ found that plaintiff had “the following
severe impairments: arthritis of the hands, feet, hips and arms, fibromyalgia, carpal

tunnel syndrome, and disorders of the cervical spine.” R. at 14 (citing 20 C.F.R.
§ 404.1520(c)). The ALJ determined, however, that these impairments, alone or in
combination, did not meet one of the listed impairments in the regulations. See R. at
14. The ALJ concluded that plaintiff retained the residual functional capacity (“RFC”) to
“perform the full range of light work.” R. at 15. Based upon these findings and the
application of the Medical-Vocational Guidelines, the ALJ found that, although plaintiff
could not perform her past relevant work, see R. at 18, she could perform jobs existing
in significant numbers in the national economy. See R. at 18-19. Therefore, the ALJ
found that plaintiff was “not under a disability, as defined in the Social Security Act, from
December 15, 2004, through the date of this decision.” R. at 19 (citing 20 C.F.R.
§ 404.1520(g)). On December 10, 2009, the Appeals Council denied plaintiff’s request
for review of this denial, making the the ALJ’s decision the final decision of the
Commissioner. See R. at 3.
II. ANALYSIS
A. Standard of Review
Review of the Commissioner’s finding that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standards and whether
the decision is supported by substantial evidence in the record as a whole. Angel v.
Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). The district court may not reverse an
ALJ simply because the court 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
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reasonable mind might accept as adequate to support a conclusion.” Flaherty v. Astrue,
515 F.3d 1067, 1070 (10th Cir. 2007). Moreover, “[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). The district court will 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.
Nevertheless, “if the ALJ failed to apply the correct legal test, there is a ground for
reversal apart from lack of substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482,
1487 (10th Cir. 1993).
B. The Five-Step Evaluation Process
To qualify for disability benefits, a claimant must have a medically determinable
physical or mental impairment expected to result in death or last for a continuous period
of twelve months that prevents the claimant from performing any substantial gainful
work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2).
Furthermore,
[a]n individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A) (2006). The Commissioner has established a five-step
sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R. §

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404.1520; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). The steps of the
evaluation are:
(1) whether the claimant is currently working; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets an
impairment listed in appendix 1 of the relevant regulation; (4) whether the
impairment precludes the claimant from doing his past relevant work; and (5)
whether the impairment precludes the claimant from doing any work.
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citing 20 C.F.R.
§ 404.1520(b)-(f)). A finding that the claimant is disabled or not disabled at any point in
the five-step review is conclusive and terminates the analysis. Casias v. Sec’y of Health
and Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).
The claimant has the initial burden of establishing a case of disability. However,
“[i]f the claimant is not considered disabled at step three, but has satisfied her burden of
establishing a prima facie case of disability under steps one, two, and four, the burden
shifts to the Commissioner to show the claimant has the residual functional capacity
(RFC) to perform other work in the national economy in view of her age, education, and
work experience.” See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005);
see also Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). While the claimant has the
initial burden of proving a disability, “the ALJ has a basic duty of inquiry, to inform
himself about facts relevant to his decision and to learn the claimant's own version of
those facts.” Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).
C. Plaintiff’s Objections to the ALJ Decision
In her appeal, plaintiff argues, inter alia, that the ALJ erroneously applied the
Medical Vocational Guidelines (the “grids”), see 20 C.F.R. pt. 404, subpt. P, app. 2, at
step five of the evaluation process to determine that she was not disabled. The grids
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consist of tables addressing whether a claimant is disabled based upon an RFC
category (e.g., sedentary, light) as well as claimant’s age, education, and work
experience. See 20 C.F.R. pt. 404, subpt. P, app. 2. Here, the ALJ concluded that
plaintiff could do the full range of light work and, considering her age, education, and
work experience, that she was not disabled, relying conclusively upon Rules 202.21 and
Rule 202.14 of the grids. See R. at 19.
“[A]n ALJ may not rely conclusively on the grids unless he finds . . . that the
claimant has no significant nonexertional impairment,” Thompson v. Sullivan, 987 F.2d
1482, 1488 (10th Cir. 1993), because “the grids take into account only exertional or
strength [limitations].” Frey v. Bowen, 816 F.2d 508, 513 (10th Cir.1987). Pain and
“manipulative or postural limitations” constitute nonexertional limitations. See Spaulding
v. Astrue, 379 F. App’x 776, 778 (10th Cir. 2010) . Here, the ALJ conclusively relied
upon the grids despite having concluded at step two of the evaluation process that
plaintiff suffered from the following severe impairments: “arthritis of the hands, feet, hips
and arms, fibromyalgia, carpal tunnel syndrome, and disorders of the cervical spine.” R.
at 14.
This finding at step two is inconsistent with the application of the grids. For
example, having found her fibromyalgia1 constituted a severe impairment at step two,
the ALJ was not free to ignore it when assessing her RFC. See Sandoval v. Barnhart,
197 F. App’x 801, 803 (10th Cir. 2006) (“The ALJ recognized Mr. Sandoval’s back pain
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See Duncan v. Apfel, 1998 WL 544353, at *2 (10th Cir. Aug. 26, 1998)
(“Fibromyalgia is defined as a syndrome of pain in the fibrous tissues, muscles,
tendons, ligaments, etc.”) (citing The Merck Manual of Diagnosis & Therapy, at 1369
(Robert Berkow & Andrew J. Fletcher eds., 16th ed. 1992)).
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as a severe impairment at step two . . . . The ALJ’s step-two finding makes it
impossible to conclude at step four that Mr. Sandoval's pain was insignificant. The ALJ
therefore erred by relying conclusively on the grids.”); Duncan, 1998 WL 544353, at *2
(“We note the inconsistency of finding that a pain syndrome is severe at step two and
insignificant at step five.”). Although the ALJ did not fully credit plaintiff’s statements
regarding the severity of her symptoms, see R. at 17, that does not equate with the
nonexistence of those symptoms or render them irrelevant to the determination of
plaintiff’s RFC. Cf. Duncan, 1998 WL 544353, at *2 (“The ALJ . . . appears to have
considered primarily whether plaintiff's pain was totally disabling and to have given short
shrift to the possibility that it was significant even if not disabling.”). This failure to
consider at steps four and five the nonexertional limitations found at step two constitutes
reversible error.
Because the ALJ will have the opportunity upon remand to consider all of
plaintiff’s severe and non-severe impairments2 and address plaintiff’s allegations of error
regarding reliance on the consultative examiner’s opinion, the Court need not reach
plaintiff’s other objections to the ALJ’s decision.

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See 20 C.F.R. § 404.1520(e) (“If your impairment(s) does not meet or equal a
listed impairment, we will assess and make a finding about your residual functional
capacity based on all the relevant medical and other evidence in your case record, as
explained in § 404.1545.”); 20 C.F.R. § 404.1545(a)(2) (“We will consider all of your
medically determinable impairments of which we are aware, including your medically
determinable impairments that are not ‘severe,’ as explained in §§ 404.1520(c),
404.1521, and 404.1523, when we assess your residual functional capacity.”).
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III. CONCLUSION
For the foregoing reasons, it is
ORDERED that the December 3, 2007 decision of the Commissioner that plaintiff
was not disabled is REVERSED and REMANDED for further proceedings consistent
with this opinion.

DATED June 27, 2011.
BY THE COURT:

s/ Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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