Coleman v. Colvin et al

Filing 22

ORDER. The decision of the Commissioner is AFFIRMED, by Judge Philip A. Brimmer on 3/6/18. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 16-cv-00918-PAB
TERRI COLEMAN,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter comes before the Court on the Complaint [Docket No. 1] filed by
plaintiff Terri Coleman on April 23, 2016. Plaintiff seeks review of the final decision of
defendant Nancy A. Berryhill (the “Commissioner”) denying her claim for disability
insurance benefits and supplemental security income under Titles II and XVI 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).1
I. BACKGROUND
On May 3, 2013, plaintiff applied for disability insurance benefits and
supplemental security income under Titles II and XVI of the Act. R. at 10. Plaintiff
alleged that she had been disabled since April 4, 2013. Id. After an initial
administrative denial of her claim, plaintiff received a hearing before an Administrative
Law Judge (“ALJ”) on October 30, 2014. Id. On November 21, 2014, the ALJ issued a
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The Court has determined that it can resolve the issues presented in this matter
without the need for oral argument.

decision denying plaintiff’s claim. Id. at 10-24. The ALJ found that plaintiff had the
following severe impairments: mild neurological disorder, adjustment disorder with
depressed mood, and mild degenerative disc disease within the lumbar spine with
additional references to sciatica. Id. at 12-13. The ALJ concluded that these
impairments, alone or in combination, did not meet one of the regulations’ listed
impairments, id. at 14, and found that plaintiff had the residual functional capacity
(“RFC”) to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). The
claimant is able to lift, carry, push and/or pull 20 pounds occasionally and 10
pounds frequently. The claimant is able to stand and/or walk about six hours
out of an eight-hour workday. The claimant has no limitations regarding
sitting. The claimant is able to frequently climb ramps and stairs as well as
balance. The claimant does not require the use of an assistive device for
ambulation. The claimant should not work around hazardous heights or
climb ladders, ropes or scaffolds. The claimant cannot be required to
operate machinery involving dangerous mechanical parts. The claimant is
able to understand, remember and carry out tasks learned in up to six
months.
Id. at 16. Based upon this RFC, the ALJ concluded that plaintif f was incapable of
performing her past relevant work as a substance abuse counselor. Id. at 21.
However, the ALJ, in reliance on the testimony of a vocational expert (“VE”), concluded
that plaintiff had the RFC to perform the requirements of office helper, ticket taker, and
mail clerk. Id. at 22.
On March 2, 2016, the Appeals Council denied plaintif f’s request for review of
the ALJ’s denial of her claim. Id. at 1. Given the Appeals Council’s denial, the ALJ’s
decision is the final decision of the Commissioner.

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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. See Angel
v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). T he 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 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). T he 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 a 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

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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.
§ 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 & 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 satisf ied 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

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(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). W hile 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. The ALJ’s Decision
Plaintiff argues that the ALJ erred by (1) finding that plaintiff could perform light
work requiring her to lift 20 pounds occasionally; (2) failing to base her findings
regarding plaintiff’s credibility on substantial evidence; and (3) finding that plaintiff had
the RFC to perform semi-skilled work that could take up to six months to learn. Docket
No. 14 at 5.
1. Plaintiff’s Ability to Perform Light Work
The ALJ determined that plaintiff was able to perform light work.2 R. at 16. Light
work is defined as follows:
Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a
good deal of walking or standing, or when it involves sitting most of the
time with some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light work, you
must have the ability to do substantially all of these activities.

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Had the ALJ determined that plaintiff was unable to perform light work, plaintiff
would have been found disabled at step five under Medical Vocational Disability Rule
201.14 in light of her age, educational attainment, and work history. See 20 C.F.R. §
404, Subpt. P, App. 2.
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20 C.F.R. §§ 404.1567(b), 416.967(b). The term “light work” as used in the Social
Security Act has the same meaning as it has in the Dictionary of Occupational Titles
(“DOT”), published by the Department of Labor. See 20 C.F.R. §§ 404.1567, 416.967.
The DOT states that light work involves “[E]xerting up to 20 pounds of force
occasionally.” DOT, 706.684-022. “‘Occasionally’ means occurring from very little up to
one-third of the time.” SSR 83-10, 1983 WL 31251, at *5 (1983). In support of her
determination that plaintiff could lift 20 pounds occasionally, the ALJ relied on plaintiff’s
work caring for her seven-month-old grandson, who weighed 17 pounds at the time,
stating that “the claimant’s babysitting duties clearly support the ability to carry/lift up to
20 pounds on an occasional basis.” R. at 18.
Plaintiff argues that the ALJ’s RFC determination contradicts the findings of Dr.
Sam Rubinson, the consultative examiner who examined plaintiff. Docket No. 14 at 1416. Plaintiff states that “the only medical expert to opine on the subject, [Dr. Rubinson],
opined that she could only lift 10 pounds.” Id. at 14. Dr. Rubinson found that plaintiff
“appears to be able to lift and carry up to 10 pounds frequently” and that plaintiff “does
not appear to have any manipulative restrictions, although numbness of her left palm
may interfere with some gross manipulation.” R. at 312-13. Dr. Rubinson’s report
makes no reference to the amount that plaintiff can lift occasionally. Thus, the ALJ’s
RFC determination regarding plaintiff’s ability to lift 20 pounds occasionally did not
contradict Dr. Rubinson’s finding. As plaintiff concedes, no other medical evidence in
the record supports plaintiff’s claim that she cannot lift 20 pounds occasionally. See
Docket No. 14 at 15.

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Plaintiff additionally argues that the ALJ disregarded plaintiff’s testimony in
making the RFC determination. Docket No. 14 at 14. Plaintiff claims “it was difficult for
her to lift her grandson and that she could not always do so . . . she was ‘leery’ of
stumbling with him, and that she normally did not take him out of the house.” Id. The
Court finds that the ALJ relied on substantial evidence in support of her conclusions
regarding plaintiff’s RFC. The ALJ discussed plaintiff’s testimony, noting that plaintiff
stated that she babysat her seven-month-old grandson forty hours per week. R. at 18.
The ALJ acknowledged that “[plaintiff] did outline concerns since she has stumbled
while holding the child and has difficulty standing when changing him,” R. at 17, but
noted that “[plaintiff] did not allude[] to any incidents resulting in or near-injury to the
infant” and “she has not used any prescribed medications to address her allegations.”
Id. at 18. It was reasonable for the ALJ to infer that plaintiff was capable of lifting 20
pounds occasionally given the entirety of plaintiff’s description of her childcare duties
and in light of the other evidence the ALJ cited.
2. Plaintiff’s Subjective Complaints and Credibility
Plaintiff argues that the ALJ failed to cite factors based on substantial evidence
to support her finding that plaintiff was “not credible.” Docket No. 14 at 17. “Credibility
determinations are peculiarly the province of the finder of fact, and [the Court] will not
upset such determinations when supported by substantial evidence.” Diaz v. Sec’y of
Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990).
The ALJ stated that, “[h]aving considered the claimant’s subjective statements in
conjunction with the objective evidence summarized above and discussed in earlier

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Findings, the undersigned finds the claimant’s subjective complaints and allegations are
not credible.” R. at 17. The ALJ acknowledged plaintiff’s pain and cognitive changes,
but she discounted the severity of these complaints in light of plaintiff’s daily activities.
Id. at 17-18. In particular, the ALJ found inconsistencies between plaintiff’s stated
limitations and her ability to care for her seven-month-old grandson for forty hours a
week. Id. at 18. In addition, the ALJ found that, while plaintiff has reported and been
observed as unsteady, she has not regularly used a cane since 2013 and has not used
medication to address her “neuropathic complaints.” Id. In making her credibility
determination, the ALJ provided an analysis that relied on substantial evidence. Id. at
16-18. The Court must therefore accept the ALJ’s weighing of the evidence and
credibility determinations. Boone v. Apfel, 1999 WL 668253, at *3 (10th Cir. Aug. 26,
1999) (unpublished).
3. Dr. Leidal’s Opinion
Dr. Frederick G. Leidal, a consultative psychologist, opined that plaintiff would
have “mild-moderate” impairments in understanding and carrying out complex
instructions and in her ability to make judgments on complex work-related decisions. R.
at 388. The ALJ stated that “Dr. Leidal did not specifically define how he was using the
term ‘complex.’ It is unclear whether he intended this to include skilled as well as semiskilled . . . a reasonable interpretation is that Dr. Leidal did not intend to preclude the
claimant from engaging in semi-skilled tasks.” Id. at 20. Based on this interpretation,
the ALJ concluded that plaintiff was capable of performing work that could be learned
within a six-month period. Id. Plaintiff argues that, because the ALJ found Dr. Leidal’s

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opinion to be unclear, the ALJ was obligated to obtain additional expert testimony or
re-contact Dr. Leidal. Docket No. 14 at 19.
The ALJ determined that plaintiff was not disabled at step five because plaintiff
could perform multiple unskilled jobs – jobs that require two months to learn. R. at 22
(listing three jobs that require two months to learn); see also SSR 00-4p, 2000 WL
1898704, at *3 (Dec. 4, 2000) (stating that jobs requiring two months to learn are
“unskilled” within the meaning of the DOT). Dr. Leidal’s opinion, however it is
construed, does not support a finding that plaintiff is incapable of performing “unskilled”
work. Even if the ALJ should have consulted Dr. Leidal to clarify the meaning of
“complex,” any error was harmless because the ALJ did not rely upon plaintiff’s ability to
perform semi-skilled work. See Fischer-Ross v. Barnhart, 431 F.3d 729, 730 (10th Cir.
2005) (holding that remand is not required where, “reading [] the ALJ’s decision as a
whole,” remand would needlessly prolong administrative proceedings).
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that the decision of the Commissioner is AFFIRMED.

DATED March 6, 2018.
BY THE COURT:

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

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