Radabaugh v. Colvin

Filing 21

MEMORANDUM DECISION and ORDER. IT IS HEREBY ORDERED that the Commissioners decision in this case is AFFIRMED. Signed by Magistrate Judge Paul M. Warner on 02/04/2015. (tls)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
STACEY RADABAUGH,
Plaintiff,

MEMORANDUM DECISION
AND ORDER

v.

Case No. 2:13-cv-202-PMW

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

Magistrate Judge Paul M. Warner

Before the court is Stacey Radabaugh’s (“Plaintiff”) appeal of the Commissioner’s final
decision determining that Plaintiff was not entitled to Supplemental Security Income (“SSI”)
under Title XVI of the Social Security Act. See 42 U.S.C. §§ 1381-1383f. After careful
consideration of the written briefs and the complete record, the court has determined that oral
argument is not necessary in this case.
BACKGROUND
Plaintiff alleges disability due to various physical and mental impairments. On May 20
2009, Plaintiff protectively applied for SSI, alleging disability beginning on June 1, 1999. 1
Plaintiff’s application was denied initially and upon reconsideration. 2 On February 5, 2010,
Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), 3 and that hearing was

1

See docket no. 7, Exhibits 1-10, Administrative Record (“Tr.

2

See Tr. 63-64.

3

See Tr. 75-77.

”) 13, 103-108.

held on May 2, 2011. 4 On June 8, 2011, the ALJ issued a written decision denying Plaintiff’s
claim for DIB. 5 On November 20, 2012, the Appeals Council denied Plaintiff’s request for
review, 6 making the ALJ’s decision the Commissioner’s final decision for purposes of judicial
review. See 42 U.S.C. § 1383(c)(3); 20 C.F.R. § 416.1481.
On March 27, 2013, Plaintiff filed her complaint in this case, which was assigned to
preliminarily to Magistrate Judge Paul M. Warner. 7 The Commissioner filed her answer and the
administrative record on July 10, 2013. 8 On July 30, 2013, both parties consented to having a
United States Magistrate Judge conduct all proceedings in the case, including entry of final
judgment, with appeal to the United States Court of Appeals for the Tenth Circuit. 9
Consequently, the case was assigned permanently to Magistrate Judge Warner pursuant to 28
U.S.C. § 636(c) and rule 73 of the Federal Rules of Civil Procedure. 10 See 28 U.S.C. § 636(c);
Fed. R. Civ. P. 73.

4

See Tr. 32-62.

5

See Tr. 10-31.

6

See Tr. 5-8.

7

See docket no. 3.

8

See docket no. 7.

9

See docket no. 14.

10

See id.
2

Plaintiff filed her opening brief on March 14, 2014. 11 The Commissioner filed her
answer brief on March 26, 2014. 12 Plaintiff filed her reply brief on April 30, 2014. 13
STANDARD OF REVIEW
This court “review[s] the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct legal
standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotations and
citation omitted). The Commissioner’s findings, “if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. It requires more than a
scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084 (quotations and citation omitted).
“In reviewing the ALJ’s decision, [this court may] neither reweigh the evidence nor substitute
[its] judgment for that of the [ALJ].” Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006)
(quotations and citation omitted). “The failure to apply the correct legal standard or to provide
this court with a sufficient basis to determine that appropriate legal principles have been
followed [are] grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005)
(quotations and citation omitted).
A five-step evaluation process has been established for determining whether a claimant is
disabled. See 20 C.F.R. § 416.920(a)(4)(i)-(v); see also Williams v. Bowen, 844 F.2d 748, 750-51
(10th Cir. 1988) (discussing the five-step process). If a determination can be made at any one of

11

See docket no. 17.

12

See docket no. 18.

13

See docket no. 19.
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the steps that a claimant is or is not disabled, the subsequent steps need not be analyzed. See 20
C.F.R. § 416.920(a)(4).
Step one determines whether the claimant is presently
engaged in substantial gainful activity. If [the claimant] is,
disability benefits are denied. If [the claimant] is not, the decision
maker must proceed to step two: determining whether the claimant
has a medically severe impairment or combination of
impairments. . . . If the claimant is unable to show that his
impairments would have more than a minimal effect on his ability
to do basic work activities, he is not eligible for disability benefits.
If, on the other hand, the claimant presents medical evidence and
makes the de minimis showing of medical severity, the decision
maker proceeds to step three.
Williams, 844 F.2d at 750-51 (quotations and citations omitted); see 20 C.F.R. § 416.920(a)(4)(i)(ii).
“Step three determines whether the impairment is equivalent to one of a number of listed
impairments that . . . are so severe as to preclude substantial gainful activity . . . . If the
impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to
benefits. If not, the evaluation proceeds to the fourth step . . . .” Williams, 844 F.2d at 751
(quotations and citations omitted); see 20 C.F.R. § 416.920(a)(4)(iii). At the fourth step, the
claimant must show that the impairment prevents performance of his “past relevant work.” 20
C.F.R. § 416.920(a)(4)(iv). “If the claimant is able to perform his previous work, he is not
disabled.” Williams, 844 F.2d at 751. If, however, the claimant is not able to perform his
previous work, he “has met his burden of proof, establishing a prima facie case of disability.” Id.
At this point, “[t]he evaluation process . . . proceeds to the fifth and final step.” Id. At
this step, the burden of proof shifts to the Commissioner, and the decision maker must determine
“whether the claimant has the residual functional capacity [(“RFC”)] . . . to perform other work
in the national economy in view of his age, education, and work experience.” Id.; see 20 C.F.R.
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§ 416.920(a)(4)(v). If it is determined that the claimant “can make an adjustment to other work,”
20 C.F.R. § 416.920(a)(4)(v), he is not disabled. If, on the other hand, it is determined that the
claimant “cannot make an adjustment to other work,” 20 C.F.R. § 416.920(a)(4)(v), he is
disabled and entitled to benefits.
ANALYSIS
In support of her claim that the Commissioner’s decision should be reversed, Plaintiff
argues that the ALJ erred at step three of the sequential evaluation process (1) by failing to
consider section 12.03 of Appendix 1 of the relevant regulations (individually, a “listing” and
collectively, the “listings”), see 20 C.F.R. § 404, Subpart P, Appendix 1, listing 12.03; (2) in his
assessment of the B criteria for listings 12.04 and 12.08, see id. at listings 12.04, 12.08; and (3)
in his assessment of the C criteria for listing 12.04, see id. at listing 12.04.
As indicated above, step three “determines whether the impairment is equivalent to one
of a number of listed impairments that . . . are so severe as to preclude substantial gainful
activity.” Williams, 844 F.2d at 751 (quotations and citations omitted); see 20 C.F.R.
§ 416.920(a)(4)(iii). At step three, a claimant has the “burden to present evidence establishing
her impairments meet or equal listed impairments.” Fischer-Ross, 431 F.3d at 733. In order to
satisfy this burden, a claimant must establish that her impairments “meet all of the specified
medical criteria. An impairment that manifests only some of those criteria, no matter how
severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990). “To show that an
impairment or combination of impairments meets the requirements of a listing, a claimant must
provide specific medical findings that support each of the various requisite criteria for the
impairment.” Lax, 489 F.3d at 1085; see also 20 C.F.R. § 416.925.

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I. Listing 12.03
Plaintiff first argues that the ALJ erred at step three by failing to discuss whether
Plaintiff’s alleged impairments satisfied listing 12.03, which governs schizophrenic, paranoid,
and other psychotic disorders. See 20 C.F.R. § 404, Subpart P, Appendix 1, listing 12.03. That
argument fails.
The court notes that Plaintiff’s representative argued at hearing that Plaintiff’s alleged
impairments satisfied listings 12.04 and 12.08, not listing 12.03. See, e.g., Branum v. Barnhart,
385 F.3d 1268, 1271 (10th Cir. 2004) (“[I]n cases such as this one where the claimant was
represented by counsel at the hearing before the ALJ, the ALJ should ordinarily be entitled to
rely on the claimant’s counsel to structure and present claimant’s case in a way that the
claimant’s claims are adequately explored, and the ALJ may ordinarily require counsel to
identify the issue or issues requiring further development.” (quotations and citation omitted)).
Further, the court notes that the state agency psychologists did not identify listing 12.03 as one of
the relevant listings for consideration, indicating they did not believe the medical evidence
supported consideration of that listing in Plaintiff’s case. Without any evidence from either
Plaintiff’s representative or a medical source indicating that listing 12.03 should have been
considered, the court cannot say that the ALJ erred by failing to discuss that listing.
Furthermore, even if Plaintiff had been able to persuade the court that ALJ erred by
failing to explicitly discuss listing 12.03, the court would conclude that any such error was
harmless because Plaintiff failed to carry her burden of demonstrating that her alleged
impairments satisfy the criteria of that listing. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009)
(“[T]he burden of showing that an error is harmful normally falls upon the party attacking the
agency’s determination.”); see also Fischer-Ross v. Barnhart, 431 F.3d 729, 733-34 (10th Cir.
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2005) (recognizing applicability of harmless error analysis in Social Security context); Wall v.
Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009) (“Even assuming Claimant preserved this argument
at step two, nothing in the record suggests Claimant can satisfy the basic requirements of listing
12.05. . . . Thus, the ALJ did not err in failing to consider the applicability of listing 12.05(C).”).
Listing 12.03 contains an introductory paragraph, the A criteria (a set of medical
findings), and the B criteria (a set of impairment-related functional limitations). See 20 C.F.R.
§ 404, Subpart P, Appendix 1, listings 12.00(A), 12.03(A)-(B). The listing also contains the C
criteria, which are considered only if the claimant fails to satisfy the B criteria. See id. at listings
12.00(A), 12.03(C). In order for her alleged impairments to satisfy the requirements of listing
12.03, Plaintiff had the burden to establish that she satisfied the introductory paragraph and
either the A and B criteria or the A and C criteria. See id. at listings 12.00(A), 12.03(A)-(C); see
also Sullivan, 493 U.S. at 530.
In this case the ALJ addressed the B in the context of listings 12.04 and 12.08 and the C
criteria in the context of listing 12.04. That analysis applies with equal weight to listing 12.03
because the B criteria are identical for listings 12.03, 12.04, and 12.08, see 20 C.F.R. § 404,
Subpart P, Appendix 1, listings 12.03(B), 12.04(B), 12.08(B), and the C criteria are identical for
listings 12.03 and 12.04, see id. at listings 12.03(C), 12.04(C).
The court concludes that Plaintiff failed to carry her burden of demonstrating that her
alleged impairments satisfy the requirements of either the B or C criteria. Consequently, she
cannot establish that she satisfies all of the requirements of listing 12.03. See id. at listings
12.00(A), 12.03(A)-(C); see also Sullivan, 493 U.S. at 530. In arguing that her alleged
impairments satisfy the requirements of the B and C criteria, Plaintiff merely points to selective
portions of the record that support her arguments. However, the Commissioner also points to
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record evidence indicating that Plaintiff’s alleged impairments do not satisfy those requirements.
Plaintiff’s arguments on this point are, in essence, an attempt to reargue the weight of the
evidence before the ALJ, which is a futile tactic on appeal. It is not this court’s role to reweigh
the evidence before the ALJ. See Madrid, 447 F.3d at 790. Indeed, it is the ALJ’s role to weigh
and resolve evidentiary conflicts and inconsistencies. See Rutledge v. Apfel, 230 F.3d 1172, 1174
(10th Cir. 2000); Eggleston v. Bowen, 851 F.2d 1244, 1247 (10th Cir. 1988). From an
evidentiary standpoint, the only issue relevant to the court is whether substantial evidence exists
in the record to support the ALJ’s conclusions. See Oldham v. Astrue, 509 F.3d 1254, 1257 (10th
Cir. 2007) (providing that the court reviewing the ALJ’s decision reviews “only the sufficiency
of the evidence, not its weight” (emphasis omitted)); see also Lax, 489 F.3d at 1084 (“The
possibility of drawing two inconsistent conclusions from the evidence does not prevent an
administrative agency’s findings from being supported by substantial evidence. We may not
displace the agenc[y’s] choice between two fairly conflicting views, even though the court would
justifiably have made a different choice had the matter been before it de novo.” (quotations and
citations omitted) (alteration in original)). In this case, the evidence cited by the Commissioner
constitutes substantial evidence to support the ALJ’s conclusion that Plaintiff’s alleged
impairments did not satisfy either the B or C criteria. Accordingly, the court cannot say that the
ALJ erred in his analysis of those criteria.
II. B Criteria for Listings 12.04 and 12.08
Plaintiff argues that the ALJ erred in his assessment of the B criteria for listings 12.04 and
12.08. In the analysis of listing 12.03 above, the court concluded that Plaintiff failed to carry her
burden at step three to demonstrate that her alleged impairments satisfy the requirements of the B
criteria for that listing. Because the B criteria are identical for listings 12.03, 12.04, and 12.08,
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see 20 C.F.R. § 404, Subpart P, Appendix 1, listings 12.03(B), 12.04(B), 12.08(B), as noted
above, it logically follows that Plaintiff failed to carry her burden with respect to the B criteria
for listings 12.04 and 12.08.
III. C Criteria for Listing 12.04
Finally, Plaintiff argues that the ALJ erred in his assessment of the C criteria for listing
12.04. Above, the court concluded that Plaintiff failed to carry her burden at step three to
establish that her alleged impairments satisfy the requirements of the C criteria for listing 12.03.
Because the C criteria are identical for listings 12.03 and 12.04, see id. at listings 12.03(C),
12.04(C), as indicated above, Plaintiff has also failed to carry her burden with respect to the C
criteria for listing 12.04.
CONCLUSION AND ORDER
Based on the foregoing, the court concludes that all of Plaintiff’s arguments fail.
Accordingly, IT IS HEREBY ORDERED that the Commissioner’s decision in this case is
AFFIRMED.
IT IS SO ORDERED.
DATED this 4th day of February, 2015.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

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