Vigil v. Colvin

Filing 20

ORDER by Magistrate Judge Kristen L. Mix on 9/5/17 re: 10 SOCIAL SECURITY ADMINISTRATIVE RECORD. IT IS HEREBY ORDERED that the decision of the Commissioner that Plaintiff is not disabled is REVERSED and this matter is REMANDED for further proceedings consistent with this opinion. IT IS FURTHER ORDERED that Plaintiff is AWARDED her costs, to be taxed by the Clerk of the Court pursuant to Fed. R. Civ. P. 54(d)(1), D.C.COLO.LCivR 54.1, and 28 U.S.C. § 2412(a)(1). (lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-01014-KLM
HOLLY T. VIGIL,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration,1
Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court2 on the Social Security Administrative Record
[#10],3 filed October 11, 2016, in support of Plaintiff’s Complaint [#1] seeking review of the
decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security
Administration, (“Defendant” or “Commissioner”) denying Plaintiff’s claim for disability
insurance benefits pursuant to Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401
et seq., and for supplemental security income benefits pursuant to Title XVI of the Act, 42
U.S.C. § 1381 et seq. On August 15, 2016, Plaintiff filed an Opening Brief [#14] (the
“Brief”). Defendant filed a Response [#15] in opposition. No Reply was filed. The Court

1

On January 23, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting
Commissioner of the Social Security Administration. Pursuant to Fed. R. Civ. P. 25(d), Nancy A.
Berryhill is therefore “automatically substituted” as the properly-named Defendant in this action.
2

The parties consented to proceed before the undersigned for all proceedings pursuant
to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2. See [#12, #18].
3

“[#10]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.

-1-

has jurisdiction to review the Commissioner’s final decision under 42 U.S.C. §§ 405(g) and
1383(c). The Court has reviewed the entire case file and the applicable law and is
sufficiently advised in the premises. For the reasons set forth below, the decision of the
Commissioner is REVERSED and this case is REMANDED for further proceedings.
I. Background
Plaintiff alleges that she became disabled at the age of thirty-three on October 15,
2011. Tr. 152, 159.4 On March 29, 2013, Plaintiff filed applications for disability insurance
benefits under Title II and for supplemental security income under Title XVI. Tr. 134-51.
On November 4, 2014, an Administrative Law Judge (the “ALJ”) issued an unfavorable
decision. Tr. 20.
The ALJ determined that Plaintiff met the insured status requirements of the Act
through December 31, 2016, and that Plaintiff had not engaged in substantial gainful
activity (“SGA”) since October 15, 2011, the alleged onset date. Tr. 14. The ALJ found
that Plaintiff suffers from three severe impairments: (1) bilateral carpal tunnel syndrome;
(2) cervical degenerative disc disease; and (3) obesity. Tr. 14. However, the ALJ also
found that these impairments, individually or in combination, do not meet or medically equal
“the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” Tr. 14-15.
The ALJ next concluded that Plaintiff has the residual functional capacity (“RFC”) to
perform a limited range of light work:
. . . except the claimant can occasionally lift and/or carry 20 pounds and
frequently 10 pounds; stand and/or walk about six hours in and [sic] eight-

4

The Court refers to the Transcript of the Administrative Proceedings, located at Docket
Nos. 10 through 10-8 by the sequential transcript numbers instead of the separate docket numbers.

-2-

hour workday; and sit for a total of about six hours in an eight-hour workday.
The claimant cannot push/pull with the left upper extremity, due to no range
of motion with the left wrist. The claimant can frequently climb ramps and
stairs; occasionally climb ladders, ropes, and scaffolds; frequently stoop,
kneel, and crouch, and occasionally crawl. The claimant can reach in any
direction (including overhead), occasionally handle (gross manipulation), and
finger and feeling without limitation. The claimant has no visual,
communicative, or environment limitations.
Tr. 15. Based on the RFC and the testimony of an impartial vocational expert (“VE”), the
ALJ found that Plaintiff was able to perform past relevant work as a cashier II. Tr. 19. He
therefore found Plaintiff not disabled at step four of the sequential evaluation. Tr. 19-20.
The ALJ’s decision has become the final decision of the Commissioner for purposes of
judicial review. 20 C.F.R. §§ 404.981, 416.1481.
II. Standard of Review and Applicable Law
Pursuant to the Act:
[T]he Social Security Administration is authorized to pay disability insurance
benefits and Supplemental Security Income to persons who have a
“disability.” A person qualifies as disabled, and thereby eligible for such
benefits, “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.”
Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (quoting 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B)). Under the applicable legal standard, a claimant is disabled if he or she
is unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment . . . which has lasted or can be expected to last
for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(a); see also
Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (quoting 20 C.F.R. § 416.905(a)). The
existence of a qualifying disabling impairment must be demonstrated by “medically
acceptable clinical and laboratory diagnostic” findings.
-3-

42 U.S.C. §§ 423(d)(3),

423(d)(5)(A).
“When a claimant has one or more severe impairments the Social Security [Act]
requires the [Commissioner] to consider the combined effects of the impairments in making
a disability determination.” Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987)
(citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of a severe impairment or
combination of impairments does not require a finding that an individual is disabled within
the meaning of the Act. To be disabling, the claimant’s condition must be so functionally
limiting as to preclude any substantial gainful activity for at least twelve consecutive
months. See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir. 1995).
The Court reviews a final decision by the Commissioner by examining the
administrative record and determining “whether the [ALJ’s] factual findings are supported
by substantial evidence in the record and whether the correct legal standards were
applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). However, the Court
“may neither reweigh the evidence nor substitute [its] judgment for that of the agency.”
Harper v. Colvin, 528 F. App’x 887, 890 (10th Cir. 2013) (quoting Barnett v. Apfel, 231 F.3d
687, 689 (10th Cir. 2000)). In other words, the Court does not reexamine the issues de
novo. Sisco v. U.S. Dep’t of Health & Human Servs., 10 F. 3d 739, 741 (10th Cir. 1993).
Thus, even when some evidence could support contrary findings, the Court “may not
displace the agency’s choice between two fairly conflicting views,” even if the Court may
have “made a different choice had the matter been before it de novo.” Oldham v. Astrue,
509 F.3d 1254, 1257-58 (10th Cir. 2007).
A.

Legal Standard
The Social Security Administration uses a five-step framework to determine whether

-4-

a claimant meets the necessary conditions to receive Social Security benefits. See 20
C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proof at steps one through
four, and if the claimant fails at any of these steps, consideration of any subsequent step
or steps is unnecessary. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (“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.”). The Commissioner bears the
burden of proof at step five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Step one requires the ALJ to determine whether a claimant is “presently engaged
in substantial gainful activity.” Wall, 561 F.3d at 1052 (quoting Allen v. Barnhart, 357 F.3d
1140, 1142 (10th Cir. 2004)). If not, the ALJ considers at step two whether a claimant has
“a medically severe impairment or impairments.” Id. “An impairment is severe under the
applicable regulations if it significantly limits a claimant’s physical or mental ability to
perform basic work activities.” Wall, 561 F.3d at 1052 (citing 20 C.F.R. § 404.1521). Next,
at step three, the ALJ considers whether a claimant’s medically severe impairments are
equivalent to a condition “listed in the appendix of the relevant disability regulation,” i.e., the
“Listings.” Wall, 561 F.3d at 1052 (quoting Allen, 357 F.3d at 1142). “If a claimant’s
impairments are not equivalent to a listed impairment, the ALJ must consider, at step four,
whether a claimant’s impairments prevent her from performing her past relevant work.”
Wall, 561 F.3d at 1052 (citing Allen, 357 F.3d at 1142). “Even if a claimant is so impaired,
the agency considers, at step five, whether she possesses the sufficient [RFC] to perform
other work in the national economy.” Id.
B.

Substantial Evidence
An ALJ must consider all evidence and explain why he or she finds a claimant not

-5-

disabled. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). However, the ALJ need
not specifically “reference everything in the administrative record.” Wilson, 602 F.3d at
1148. “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. at 1140 (internal quotation marks omitted). “It
requires more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007). A decision by the ALJ is not based on substantial evidence
“if it is overwhelmed by other evidence in the record . . . .” Grogan v. Barnhart, 399 F.3d
1257, 1261-62 (10th Cir. 2005). In other words, the Court’s determination of whether the
ALJ has supported his or her ruling with substantial evidence “must be based upon the
record taken as a whole.” Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994).
Further, evidence is not substantial if it “constitutes mere conclusion.” Musgrave v.
Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). In addition, “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).
III. Analysis
Plaintiff requests judicial review of the ALJ’s decision denying her disability
insurance benefits and supplemental security income. Brief [#14] at 2. Specifically, Plaintiff
argues that: (1) the ALJ erred by finding that Plaintiff’s mental impairments were “nonsevere”; (2) the ALJ erred because the RFC he assessed “did not reflect all the practical
implications of Plaintiff’s documented impairments and limitations;” (3) the ALJ erred “by
failing to have a qualified psychologist or psychiatrist review the record in light of Plaintiff’s
medically determinable impairments;” and (4) the ALJ erred “by relying on the opinion of
a single decision-maker (SDM) to form the basis of his RFC finding.” Id.

-6-

A.

Step Two: Mental Impairments
Plaintiff takes issue with the ALJ’s determination that Plaintiff’s mental impairments

were not “severe” at step two, although, given that the ALJ continued his analysis through
step four, it is unclear whether Plaintiff is asserting that the ALJ committed reversible error
on this point. See Brief [#14] at 4-5.
The Tenth Circuit Court of Appeals has addressed how an ALJ’s purported error at
step two in failing to find a specific impairment to be “severe” is harmless so long as the
ALJ found at least one other impairment to be “severe” and thus proceeded to later steps
of his analysis:
An impairment is “severe” if it “significantly limits [a claimant’s] physical or
mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). A
claimant must make only a de minimis showing to advance beyond step two.
Langley v. Barnhart, 373 F.3d 1116, 1123 (10th Cir. 2004). To that end, a
claimant need only establish, and an ALJ need only find, one severe
impairment. See Oldham v. Astrue, 509 F.3d 1254, 1256-57 (10th Cir. 2007)
(noting that, for step two, the ALJ explicitly found that the claimant “suffered
from severe impairments,” which “was all the ALJ was required to do”). The
reason is grounded in the Commissioner’s regulation describing step two,
which states: “If you do not have a severe medically determinable physical
or mental impairment . . . or a combination of impairments that is severe . .
. , we will find that you are not disabled.” 20 C.F.R. § 404.1520(a)(4)(ii)
(emphasis added). By its plain terms, the regulation requires a claimant to
show only “a severe” impairment—that is, one severe impairment—to avoid
a denial of benefits at step two. Id. (emphasis added). As long as the ALJ
finds one severe impairment, the ALJ may not deny benefits at step two but
must proceed to the next step. Thus, the failure to find a particular
impairment severe at step two is not reversible error when the ALJ finds that
at least one other impairment is severe. Here, the ALJ found six other
impairments severe.
Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). In the instant case, the ALJ found
three other impairments to be severe. Tr. 14. Thus, the ALJ found that Plaintiff could not
conclusively be denied benefits at step two and proceeded to steps three and four of his
analysis. Thus, to the extent Plaintiff may be arguing that the ALJ erred at step two, such
-7-

error is not reversible. Allman, 813 F.3d at 1330.
B.

Step Three: Mental Impairments
“At the third step [of the five-step evaluation process], we [will] consider the medical

severity of your impairments(s). If you have an impairment(s) that meets or equals one of
our listings in appendix I of this subpart and meets the duration requirement, we will find
that you are disabled.” Williams v. Berryhill, 682 F. App’x 665, 667 (10th Cir. 2017)
(quoting 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii)) (emphasis added). In order to
qualify under a listing, the evidence must “establish that all of the medical conditions were
present at the same time for at least twelve months.” Patterson v. Colvin, 662 F. App’x
634, 637 (10th Cir. 2016) (citing 20 C.F.R. §§ 404.1525(c)(3) (to satisfy listing criteria,
impairment must “satisf[y] all of the criteria of that listing” and “meet[ ] the duration
requirement”); 404.1509 (durational requirement means the impairment “is expected to
result in death, [or] it must have lasted or must be expected to last for a continuous period
of at least 12 months”).
Plaintiff argues that the ALJ erred at step three by failing to obtain the opinion of a
qualified psychologist or psychiatrist on whether Plaintiff’s mental impairments equaled a
listing equivalence. Brief [#14] at 6. However, the issue of equivalence does not matter
in the absence of evidence that the twelve-month duration requirement is met. See
Davison v. Colvin, 596 F. App’x 675, 678 (10th Cir. 2014) (“But at all times, to qualify as
meeting the requirements of a listing, a claimant must establish that his impairment meets
the twelve-month duration requirement.”). The medical evidence at most supports that
Plaintiff sought treatment for depression-related symptoms over a five-month period
extending from November 2013 through March 2014. Tr. 15, 460-67. As the ALJ noted,

-8-

in November 2013, Plaintiff’s physician anticipated a length of incapacitation of only threeto-six months. Tr. 15, 457. Plaintiff directs the Court’s attention to no evidence overlooked
by the ALJ which demonstrates that the twelve-month duration requirement is met here.
Thus, the ALJ did not reversibly err by failing to get an opinion of listing equivalency from
a qualified psychologist or psychiatrist, because Plaintiff’s claim could not have succeeded
at step three regardless.
C.

Step Four: SDM Limitations
Plaintiff next argues that the ALJ erred by asking the VE at the administrative

hearing to assume a set of hypothetical limitations matching those provided by an SDM in
the record, and to identify jobs a claimant with those limitations could perform. Brief [#14]
at 7. Plaintiff notes that those hypothetical limitations matched the ALJ’s later RFC finding,
and therefore Plaintiff believes that the ALJ impermissibly relied on the SDM’s opinion. Id.
Plaintiff’s argument here is strikingly similar to the argument made by the claimant
in Mata v. Colvin, No. 16-cv-00398-RBJ, 2017 WL 393420, at *5 (D. Colo. Jan. 30, 2017),
and the Court’s opinion there is equally applicable here:

Lastly, I disagree with plaintiff’s contention that it is clear from her decision
that the ALJ relied on the SDM’s opinion. As plaintiff correctly points out, this
would have been improper. See Ky v. Astrue, No. 08-cv-00362-REB, 2009
WL 68760, at *3 (D. Colo. Jan. 8, 2009) (“[A]n SDM is not a medical
professional of any stripe, and the opinion of an SDM therefore is entitled to
no weight.”). However, here, the ALJ never mentioned the SDM by name or
the SDM’s opinion in her decision. . . . [P]laintiff’s argument that the ALJ
intended to rely on the SDM’s opinion in crafting her own is pure speculation
and quite unlikely since she never mentioned the SDM’s opinion in her
decision. Finally, it is no coincidence that the ALJ’s RFC and the SDM’s
opinion are somewhat similar—they are based on the same record of
medical evidence. I’d be more concerned if these two opinions were miles
apart . . . .

-9-

(some internal citations omitted). In the instant case as well, the ALJ never mentioned the
SDM or the SDM’s opinion. See Tr. 15-19. Plaintiff does not argue that any specific part
of the ALJ’s physical RFC is incorrect or unsupported by substantial evidence. Accordingly,
the Court cannot find reversible error based on the ALJ asking the VE a hypothetical at the
hearing which corresponded with the SDM’s opinion.
D.

Step Four: Mental Impairments
Finally, Plaintiff argues that the ALJ erred by failing to consider her mental

impairments in connection with his step four RFC finding. Brief [#14] at 3-5. At step three
of his analysis, the ALJ reviewed the medical evidence underlying Plaintiff’s claim of
depression as a disabling impairment. Tr. 15. He ultimately found that “the claimant’s
depression results in no more than mild restrictions in activities of daily living; mild difficulty
maintaining social functioning; mild difficulty in concentrations, persistence, or pace; and
no episode of decompensation,” and so he found that “the claimant’s depression is not a
severe impairment and does not meet or equal a listed impairment.” Tr. 15. The ALJ did
not further address Plaintiff’s mental limitations in formulating the RFC at step four. See
Tr. 15-19.
A similar situation was directly addressed by the Tenth Circuit Court of Appeals in
Wells v. Colvin, 727 F.3d 1061, 1068-72 (10th Cir. 2013):
First, a conclusion that the claimant’s mental impairments are non-severe at
step two does not permit the ALJ simply to disregard those impairments
when assessing a claimant’s RFC and making conclusions at steps four and
five. In his RFC assessment, the ALJ must consider the combined effect of
all medically determinable impairments, whether severe or not. 20 C.F.R. §§
404.1545(a)(2), 416.945(a)(2). . . . The language used suggests that the ALJ
may have relied on his step-two findings to conclude that [the claimant] had
no limitation based on her mental impairments. If so, this was inadequate
under the regulations and the Commissioner’s procedures.

-10-

In assessing a claimant’s RFC, “[t]he adjudicator must remember that the
limitations identified in the ‘paragraph B’ . . . criteria [for severity] are not an
RFC assessment but are used to rate the severity of mental impairment(s)
at steps 2 and 3 of the sequential evaluation process.” SSR 96–8p, 1996 WL
374184, at *4. “The mental RFC assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment by
itemizing various functions contained in the broad categories found in
paragraphs B and C of the adult mental disorders listings in 12.00 of the
Listing of Impairments . . . .” Id.
[T]he Ruling provides additional guidance concerning the focus of the ALJ’s
assessment of the claimant’s mental RFC. “Work-related mental activities
generally required by competitive, remunerative work include the abilities to:
understand, carry out, and remember instructions; use judgment in making
work-related decisions; respond appropriately to supervision, co-workers and
work situations; and deal with changes in a routine work setting.” Id. at *6.
Moreover, the “RFC assessment must include a narrative discussion
describing how the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations).” Id. at *7 (emphasis added). . . .
To sum up, to the extent the ALJ relied on his finding of non-severity as a
substitute for adequate RFC analysis, the Commissioner’s regulations
demand a more thorough analysis. See 20 C.F.R. §§ 404.1545(a)(2),
416.945(a)(2). . . . We must therefore remand for further proceedings
concerning the effect of [the claimant’s] medically determinable mental
impairments on her RFC, and for further analysis at steps four and five,
including any further hearing the ALJ deems necessary, in his discretion.
In the instant case, the ALJ provided no discussion at step four of Plaintiff’s
medically determinable mental impairments. The ALJ found that Plaintiff has “mild”
restrictions in three of the relevant functional areas at step three. Tr. 15. If the ALJ had
found that Plaintiff’s medically determinable impairments posed no restriction on her ability
to work, then “[s]uch a finding would obviate the need for further analysis at step four.”
Wells, 727 F.3d at 1065 n.3. However, given the ALJ’s finding of “mild” restrictions in some
functional areas, further analysis was required at step four. Id. In short, “[u]nder the
regulations, . . . a finding of non-severity alone would not support a decision to prepare an
RFC assessment omitting any mental restriction.” Id. at 1065.
-11-

Thus, based on Wells, the Court finds that the ALJ committed reversible error in his
formulation of Plaintiff’s RFC by failing to discuss and, if appropriate, include further
restrictions in connection with Plaintiff’s mental impairments.
IV. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that the decision of the Commissioner that Plaintiff is not
disabled is REVERSED and this matter is REMANDED for further proceedings consistent
with this opinion.5
IT IS FURTHER ORDERED that Plaintiff is AWARDED her costs, to be taxed by the
Clerk of the Court pursuant to Fed. R. Civ. P. 54(d)(1), D.C.COLO.LCivR 54.1, and 28
U.S.C. § 2412(a)(1). See Knuutila v. Colvin, 127 F. Supp. 3d 1146, 1153 (D. Colo. 2015).

Dated: September 5, 2017

5

The Court finds that this case does not present a proper occasion on which to exercise
its discretion and direct the award of benefits. See Nielson v. Sullivan, 992 F.2d 1118, 1122 (10th
Cir. 1993). By reversing the ALJ’s decision, the Court does not find or imply that Plaintiff is or
should be found disabled. See, e.g., Knuutila v. Colvin, 127 F. Supp. 3d 1146, 1152 n.5 (D. Colo.
2015).

-12-