Miller v. Colvin et al

Filing 23

MEMORANDUM OPINION AND ORDER: The decision of the Commissioner is AFFIRMED. The clerk of court shall enter final judgment, each side to bear its own costs. So ORDERED by Magistrate Judge Craig B. Shaffer on 6/27/17. (amont, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-01392-CBS
ROSE ANN MILLER,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,1
Defendant.

MEMORANDUM OPINION AND ORDER

Magistrate Judge Craig B. Shaffer
This action comes before the court pursuant to Titles II and XVI of the Social Security
Act (“Act”), 42 U.S.C. §§ 405(g) and 1383(c) for review of the Commissioner of Social Security
(the “Commissioner” or “Defendant”)’s final decision denying Rose Ann Miller’s (“Plaintiff”)2
application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”). Plaintiff filed the Complaint on June 9, 2016, and the case was assigned to District
Judge Wiley Y. Daniel. Doc. 1. On August 18, 2016, the parties consented to magistrate
jurisdiction pursuant to 28 U.S.C. § 626. Doc. 14. On October 21, 2016, the case was reassigned
to this Magistrate Judge. Doc. 21. The court has carefully considered the Complaint, Plaintiff’s
Opening Brief (filed September 16, 2016) (Doc. 16), Defendant’s Response Brief (filed October
5, 2016) (Doc. 17), Plaintiff’s Reply (filed October 19, 2016) (Doc. 20), the entire case file, the
1

Plaintiff sued Carolyn W. Colvin in her capacity as then-acting Commissioner of Social
Security. The court takes judicial notice that the current acting Commissioner is Nancy A.
Berryhill. “The officer’s successor is automatically substituted as a party.” Fed. R. Civ. P. 25(d).
2
The Commissioner’s records show Plaintiff’s name as Rosealie Ann Miller. The court uses the
version of Plaintiff’s name that she has used in this case.

Social Security administrative record (“AR,” doc. 12), and the applicable law. Oral argument
would not assist the court. For the following reasons, the court affirms the Commissioner’s
decision.
BACKGROUND
In January 2013, Plaintiff filed an application under Titles II and XVI of the Social
Security Act for DIB and SSI. From October 2000 to January 2013, Plaintiff worked as a global
provisioning manager in the telecom industry. AR at 256. She claimed disability based on
several conditions. Id. at 255. After the application was initially denied, Plaintiff requested a
hearing by an administrative law judge (“ALJ”). The case was assigned to ALJ Debra Boudreau,
who held an evidentiary hearing on February 18, 2015. Id. at 92-118. Plaintiff was represented
by counsel and testified at the hearing. A vocational expert (“VE”), Nora W. Dunne, also
testified at the hearing.
Pursuant to the Commissioner’s five-step process described further below, the ALJ found
among other things that Plaintiff had a severe impairment (“degenerative disc disease of the
lumbar and cervical spine”) but that Plaintiff had the residual functional capacity (“RFC”) to still
perform her former work. AR at 82-86 (decision of March 20, 2015). The ALJ thus found
Plaintiff was not disabled. Id. at 86. Plaintiff requested review by the Appeals Council, and the
Appeals Council denied her appeal on April 28, 2016. Id. at 1-7.3 The decision of the ALJ then
became the final decision of the Commissioner. See, e.g., 42 U.S.C. § 1383(c)(3); 20 C.F.R.
§ 416.1481. Plaintiff timely filed this action. Doc. 1. As the “district court of the United States

3

The Appeals Council reviewed the record and also reviewed additional medical records that
Plaintiff submitted regarding treatment post-dating the ALJ’s decision. The Appeals Council
found that information did not affect whether Plaintiff was disabled for the time period of her
application. AR at 2. Before this court, Plaintiff does not appear to rely on any of the records that
post-date the ALJ’s decision.
2

for the judicial district in which the plaintiff resides,” this court has jurisdiction. 42 U.S.C. §§
405(g), 1383(c)(3).
STANDARD OF REVIEW
The Commissioner’s regulations define a five-step process for determining whether a
claimant is disabled:
1. The ALJ must first ascertain whether the claimant is engaged in
substantial gainful activity. A claimant who is working is not
disabled regardless of the medical findings.
2. The ALJ must then determine whether the claimed impairment
is “severe.” A “severe impairment” must significantly limit the
claimant's physical or mental ability to do basic work activities.
3. The ALJ must then determine if the impairment meets or equals
in severity certain impairments described in Appendix 1 of the
regulations.
4. If the claimant's impairment does not meet or equal a listed
impairment, the ALJ must determine whether the claimant can
perform his past work despite any limitations.
5. If the claimant does not have the residual functional capacity to
perform her past work, the ALJ must decide whether the claimant
can perform any other gainful and substantial work in the
economy. This determination is made on the basis of the claimant's
age, education, work experience, and residual functional capacity.
Wilson v. Astrue, No. 10-cv-00675-REB, 2011 WL 97234, at *2 (D. Colo. Jan. 12, 2011) (citing
20 C.F.R. § 404.1520(b)-(f)); see also 20 C.F.R § 416.920;4 Williams v. Bowen, 844 F.2d 748,
750–51 (10th Cir. 1988). After the third step, the ALJ is required to assess the claimant’s RFC.
20 C.F.R. § 416.920(e). The claimant has the burden of proof in steps one through four. The

4

“Part 404 of Title 20 of the Code of Federal Regulations … contain[s] the Commissioner's
regulations relating to disability insurance benefits[;] identical, parallel regulations can be found
in Part 416 of that same title, relating to supplemental security income benefits.” Wilson, 2011
WL 97234 at n. 2.
3

Commissioner bears the burden of proof at step five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007).
A person is disabled within the meaning of the Social Security Act
only if his physical and/or mental impairments preclude him from
performing both his previous work and any other “substantial
gainful work which exists in the national economy.” 42 U.S.C. §
423(d)(2) [and 42 U.S.C. § 1382c(a)(3)(B)]. “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.” …. 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 Social Security 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.
Wilson, 2011 WL 97234, at *1 (quoting Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir.
1987)).
In reviewing the Commissioner’s final decision,
[o]ur review is limited to determining whether the Commissioner
applied the correct legal standards and whether the agency's factual
findings are supported by substantial evidence. Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. It is more than a
scintilla, but less than a preponderance.
Lee v. Berryhill, No. 16-5163, – F. App’x –, 2017 WL 2297392, at *1 (10th Cir. May 25, 2017)
(internal quotation marks and citations omitted, citing inter alia Knight ex rel. P.K. v. Colvin,
756 F.3d 1171, 1175 (10th Cir. 2014)). See also 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive”); 42 U.S.C. § 1383(c)(3) (referencing § 405(g) for standard of review).
Accordingly, the court may not reverse an ALJ because the court may have reached a
different result based on the record; the question is instead whether there is substantial evidence

4

showing that the ALJ was justified in his or her decision. See Ellison v. Sullivan, 929 F.2d 534,
536 (10th Cir. 1990). “We review only the sufficiency of the evidence, not its weight ....
Although the evidence may also have supported contrary findings, we may not displace the
agency's choice between two fairly conflicting views.” Lee, 2017 WL 2297392, at *2.
Nevertheless, “[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)
(internal citation omitted).
ANALYSIS
For her appeal, Plaintiff raises one issue: whether the ALJ erred in finding she is not
disabled because she remains capable of performing her former work. Plaintiff argues that the
ALJ erred in relying on the VE’s testimony that a person with the Plaintiff’s RFC could perform
Plaintiff’s former job as she had actually performed that job. The VE testified in relevant part:
A
…
There is no global provisioning manager in the
[Dictionary of Occupational Titles,] DOT, but
Q Hold on just a second. Is there something manager computer
operations?
A There is -Q Or do you need additional information?
A Well, let me tell you what I found and I think she will okay
it. It's a computer operator which is basically what she was
doing, talking on the phone and putting info into a computer.
Q Oh, okay.
A And the computer operator has multiple other names, it's not
just -- and one of them is communications computer system
manager, so the DOT for that is 213.362-010, and the DOT
says that job is light with a skill level of 6.
Q How was it performed?
A She described it as being sedentary. Mostly sitting.
AR at 113.
On appeal, Plaintiff argues that contrary to the VE’s testimony, she had not performed
her former job at a sedentary level and instead performed it at the light exertion level that the
5

DOT describes for the analogous job. Plaintiff contends that her RFC precludes finding her
capable of light exertion jobs, that there is no record evidence of sedentary jobs existing in
significant numbers that she could perform (as required for Step 5), and therefore, the ALJ’s
nondisability finding is not supported by substantial evidence.5
Plaintiff argues that the only evidence regarding the level of exertion at which she
actually performed her former job is contained in her disability report dated May 30, 2013.
Opening Brief at 11-12 (citing AR at 256-257). In that report, Plaintiff informed the SSA that
until she stopped working, she was a global provisioning manager and worked 8 hours per day.
AR at 256. In response to the question “Describe this job. What did you do all day?,” the report
notes: “Desk job working on computer systems, conference calls world wide – job requires
sitting and typing.” AR at 256-57. Two questions later, in a table asking how many hours
Plaintiff spent doing various activities in her former job, the report notes that each working day
Plaintiff spent 8 hours walking, 4 hours standing and 2 hours sitting – for a total of 14 working
hours per day. Id. at 257.
On its face, the disability report is inconsistent. Plaintiff stated that she worked 8 hours
per day, not 14. Plaintiff focuses exclusively on the numeric responses in the table, and
dismisses the narrative description as simply the notes of the SSA representative (T. Kirby) who
completed the form. Opening Brief at 9 (citing AR 251 and 252). Plaintiff further argues that
Kirby did not indicate that Miller intended this as an exclusive or
exhaustive list. Rather, Kirby wrote down that Miller stated that
the occupation required walking all day long, standing half of the
day, and sitting occasionally. AR 257 (walking eight hours;
standing four hours; sitting two hours). Miller never stated that she
sat most of the day much less two-thirds of the day as a global
provisioning manager.
5

On appeal, Plaintiff does not appear to contend that she is incapable of sedentary work, but
seeks reversal and remand because the ALJ must “determine whether other work exists at the
sedentary range” that Plaintiff could perform. Opening Brief at 14.
6

Opening Brief at 9. In response, the Commissioner recognizes that the disability report is
“internally inconsistent” but focuses on the narrative description, largely dismissing the numeric
table. The Commissioner also relies on a health care provider’s notes (AR at 345-46) that
Plaintiff’s former job was “working on computers and utilizing phones for VP escalations.”
Response Brief at 8.6
The court need not resolve whether the May 2013 disability report constitutes substantial
evidence that Plaintiff actually performed her former job at the sedentary level. Contrary to
Plaintiff’s arguments on appeal, Plaintiff did affirmatively state that her former job required her
to sit most of the day. Plaintiff called the SSA and corrected the May 2013 report regarding the
hours she spent walking, standing and sitting in her former job:

CLAIM COMMUNICATIONS
Claimant
Subject: work
Details:

Per phone call on 11/15/2013.
Clarification of physical
activities at work:
Walk: 1
Stand: 1
Sit: 6
Signature:

Candace Le

11/15/2013

AR at 127 (Ex. 2A/4, denying application under Title II). See also Id. at 138 (same, in Ex. 4A/4,
denying application under Title XVI). Neither side identifies this document, nor any other
testimony or documentary evidence regarding this issue. The court has reviewed the entire
administrative record and file in this case, and has found no retraction or other clarification from
Plaintiff on this issue. Plaintiff also does not contend that the ALJ should have developed further
6

Defendant also cites AR at 463, but this document does not appear to describe Plaintiff’s
activities or exertion level in her former job.
7

evidence on this issue. Reply Brief at 3. Thus, the court finds that the VE’s testimony is supported
by Plaintiff’s corrected statement that her former job required sitting for 6 out of 8 hours per day,
and by the narrative description in the May 2013 disability report.
The medical record to which the Commissioner cites is consistent with Plaintiff’s
corrected statement. This document contains notes of James Harkreader, a nurse practitioner,
from a December 6, 2012 office visit with Plaintiff. “She works for StarTek via AT, working on
computers and utilizing phones for VP escalations, works 7 a.m. to 4:30.” AR at 345. “The
patient prefers to stand, appears in no acute discomfort, is somewhat vague in answering
questions and at other times histrionic. * * * She may work full duty though frequent position
changes as needed.” Id. at 346. Mr. Harkreader’s notes do not specify whether Plaintiff
performed most of her former work while sitting or standing. Nor is it clear whether Plaintiff’s
preference for standing means a preference demonstrated during the appointment or during her
job. Although a reasonable person could interpret the document differently, it is consistent with
Plaintiff’s corrected statement that she had performed most of her former job while sitting.
In short, because the VE’s testimony is supported by substantial evidence, the ALJ
properly relied on the VE’s testimony that a person with the same RFC as Plaintiff’s could
perform her former job. See, e.g., 20 C.F.R. § 404.1560(b)(2) (“A vocational expert or specialist
may offer relevant evidence within his or her expertise or knowledge concerning the physical
and mental demands of a claimant's past relevant work, either as the claimant actually performed
it or as generally performed in the national economy.”). The nondisability finding is thus
supported by substantial evidence.

8

To the extent Plaintiff intends to argue that the VE “conceded that the job as actually
performed required light exertion and would exceed the demands of the hypothetical question,”
(Opening Brief at 8, citing AR at 114), Plaintiff is incorrect.7 The cited testimony reads:
A So, no, they could not do the computer operator as described in the
DOT.
Q Okay. My question is could it be performed as actually performed?
A And as actually performed, yes, it could be done.
AR at 114. The VE testified unequivocally that a person with the same restrictions as Plaintiff’s
RFC would be able to perform her former job as she had actually performed it. The ALJ’s
finding that Plaintiff is not disabled because she can perform her former job was supported by
substantial evidence.
CONCLUSION
For each of the reasons stated above, the decision of the Commissioner is AFFIRMED.
The clerk of court shall enter final judgment, each side to bear its own costs.
DATED at Denver, Colorado, this 27th day of June, 2017.
BY THE COURT:

s/Craig B. Shaffer
United States Magistrate Judge

7

Plaintiff’s brief is inconsistent on this point. Earlier in her brief, Plaintiff recognized that the
VE testified that a hypothetical person with the same restrictions as Plaintiff’s RFC could
perform her former job as she had actually performed it. Opening Brief at 7.
9