Medina v. Colvin

Filing 19

ORDER. The decision of the Commissioner that plaintiff was not disabled is AFFIRMED. By Judge Philip A. Brimmer on 3/27/18. (pabsec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 16-cv-02424-PAB
KENDRA MEDINA,
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 Kendra Medina on September 27, 2016. Plaintiff seeks review of the final
decision of defendant Nancy A. Berryhill (the “Commissioner”) denying her claim for
supplemental security income under Title XVI of the Social Security Act (the “Act”), 42
U.S.C. §§ 1381, et seq. The Court has jurisdiction to review the Commissioner’s final
decision under 42 U.S.C. § 405(g).1
I. BACKGROUND
On June 24, 2013, plaintiff applied for supplemental security income under Title
XVI of the Act. R. at 11. Plaintiff alleged that she had been disabled since October 18,
2012. Id. After an initial administrative denial of her claim, plaintiff received a hearing
before an Administrative Law Judge (“ALJ”) on April 21, 2015. Id. On May 15, 2015,
the ALJ issued a decision denying plaintiff’s claim. R. at 20. The ALJ found that
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The Court has determined that it can resolve the issues presented in this
matter without the need for oral argument.

plaintiff had the following severe impairments: obesity and chronic low back pain
due to degenerative disc disease, with exacerbation secondary to status post multiple
steroid injections. R. at 13. The ALJ concluded that these impairments, alone or in
combination, did not meet one of the regulations’ listed impairments, R. at 14, and ruled
that plaintiff had the residual functional capacity (“RFC”) to
perform light work as defined in 20 CFR 416.967(b) except the claimant
must be able to sit and stand at will. The claimant can stand or walk
20-30 minutes and would be able to sit about 30 minutes, sitting
cumulatively would be up to 5 hours in an eight-hour day, and standing or
walking would be up to 5 hours in an eight-hour workday. The claimant
would not be off task during the shifting of position. She can never kneel,
crouch, crawl, or climb ladders, ropes, or scaffolds. She can occasionally
climb stairs, ramps, and stoop. She is not capable of driving or
commercial driving. She must avoid concentrated exposure to extreme
cold, avoid even moderate exposure to vibration, unprotected heights, and
hazardous or moving machinery. She would likely need to lie down during
the lunch hour for 20-30 minutes, wherever allowable, in her private car or
in an employee break room.
Id. Plaintiff has no past relevant work. R. at 18. Based upon the RFC and in reliance
on the testimony of a vocational expert (“VE”), the ALJ concluded that plaintiff is
capable of performing jobs that exist in significant numbers in the national economy,
including cashier II, assembler, and order clerk. R. at 19.
On July 29, 2016, the Appeals Council denied plaintif f’s request for review of the
ALJ’s denial of her claim. R. at 1. Given the Appeals Council’s denial, the ALJ’s
decision is the final decision of the Commissioner.
II. ANALYSIS
A. Standard of Review
Review of the Commissioner’s finding that a claimant is not disabled is limited to

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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
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,

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[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
(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
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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 failing to strictly adhere to the limitations
provided in the treating source opinion of Jan Dunn, M.D. despite giving Dr. Dunn’s
opinion great weight. Docket No. 14 at 16. 2
On August 20, 2015, Dr. Dunn examined plaintiff and opined that plaintiff had
“chronic low back pain” and would need to lie down “once every 3-4 hours for 15-20
[minutes].” R. at 388-39. Dr. Dunn also opined that plaintif f could be on her feet 4-5
hours in an eight-hour workday. R. at 388-89.
The ALJ gave “great weight” to this opinion and found that it “appears
reasonable in light of the entire medical evidence.” R. at 18. The ALJ stated that she
“adopted Dr. Dunn’s limitations, and interpreted Dr. Dunn's opinion regarding the
claimant’s need to lie down up to 20 minutes at a time every 3-4 hours as needing to lie
down once at work, and again when the work shift is over.” Id. The ALJ interpreted the
plaintiff’s need to lie down in such a way that it would have limited impact on plaintiff’s
ability to work an eight-hour workday by finding that plaintiff could “lie down before the

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As an aside to her main argument, plaintiff also claims that the ALJ should
have credited plaintiff’s testimony that she has to lie down “on an unpredictable basis.”
Docket No. 14 at 17 (emphasis removed). However, the ALJ found plaintiff “not fully
credible” and rejected plaintiff’s testified limitations to the extent they were inconsistent
with the RFC the ALJ found. R. at 16. The ALJ supported this determination by
pointing to substantial evidence in the record that plaintiff’s impairments were not as
limiting as plaintiff claimed. Id.
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work shift, lie down at lunch, and lie down again after work.” Id. Additionally, the ALJ
expressed skepticism that such a limitation was warranted, stating that even this
interpretation of plaintiff’s need to lie down “appears somewhat more limited than is
supported by the relatively benign medical evidence.” Id.
First, Plaintiff argues that the ALJ’s interpretation does not “account for the
realities of the work day” because it does not contemplate a nine-hour workday with an
unpaid lunch hour. Docket No. 14 at 18. T his argument is contrary to the regulatory
scheme and interpretations that the ALJ is required to apply, and which plaintiff does
not challenge as unreasonable in light of the underlying statutes. Specifically, a
claimant’s RFC is the “most [the claimant] can still do despite [her] limitations.” 20
C.F.R. § 416.945(a)(1). Thus, the ALJ’s use of the upper limit was based on
substantial evidence.
Second, plaintiff argues that it was improper for the ALJ to adopt a limitation that
plaintiff only needs to lie down every four hours, when Dr. Dunn opined that plaintiff
would need to lie down every three to four hours. Docket No. 14 at 19. Plaintiff makes
a similar argument with respect to the ALJ’s adoption of the higher end of the range Dr.
Dunn provided for plaintiff’s standing and walking limitations. Id. at 21. Plaintiff claims
that the ALJ “did not explain why she ignored all but the upper end of Dr. Dunn’s
range[s].” Id. This argument is unpersuasive. With respect to plaintiff’s need to lie
down, the ALJ questioned whether the limitation was warranted in light of the “relatively
benign medical evidence” that the ALJ discussed, R. at 18, including that, when Dr.
Dunn initially examined plaintiff, plaintiff “made no mention of back pain” and the
doctor’s physical examination findings were “generally unremarkable.” R. at 17; see
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also R. at 435-36 (physical examination notes). With respect to plaintiff’s ability to
stand and walk, the ability to stand for five hours adopted by the ALJ in the RFC is
within the range opined by Dr. Dunn. The ALJ did not give Dr. Dunn’s opinion
controlling weight and, despite giving Dr. Dunn’s opinion great weight, the ALJ is not
required to adopt its limitations verbatim into the RFC. See Carver v. Colvin, 600 F.
App’x 616, 620 (10th Cir. 2015) (unpublished) (finding no error where an ALJ did not
adopt limitations verbatim from a doctor’s opinion into the RFC despite giving the
opinion great weight). Rather, the ALJ’s RFC determination must be based on “all the
relevant evidence in your case record.” 20 C.F.R. § 416.945(a)(1). The ALJ’s finding
that plaintiff is capable of standing or walking for up to five hours in a workday is
supported by substantial evidence in the record, including opinions that plaintiff has “no
limitations for sitting and standing,” which the ALJ accorded some weight. R. at 17; see
also R. at 18 (according the opinion of Dr. Easchief “less weight” than the opinion of Dr.
Dunn). Accordingly, the Court finds that the ALJ’s RFC determination is supported by
substantial evidence in the record.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that the decision of the Commissioner that plaintiff was not disabled
is AFFIRMED.

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DATED March 27, 2018.
BY THE COURT:

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

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