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Moore v. Colvin

United States District Court, Tenth Circuit

September 24, 2013

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


Richard D. Rogers, United States District Judge

On April 21, 2009, plaintiff filed applications for social security disability insurance benefits and supplemental security income benefits. These applications alleged a disability onset date of April 5, 2009 which was plaintiff’s last date of employment. On November 17, 2010, a hearing was conducted upon plaintiff’s applications. The administrative law judge (ALJ) considered the evidence and decided on December 3, 2010 that plaintiff was not qualified to receive benefits. Plaintiff asked for review of the ALJ’s decision by the Appeals Council which was denied on June 19, 2012. Thus, the denial of benefits is the decision of defendant. This case is now before the court upon plaintiff’s motion to reverse and remand the decision to deny plaintiff’s applications for benefits.


To qualify for disability benefits, a claimant must establish that he or she was “disabled” under the Social Security Act, 42 U.S.C. § 423(a)(1)(E), during the time when the claimant had “insured status” under the Social Security program. See Potter v. Secretary of Health & Human Services, 905 F.2d 1346, 1347 (10th Cir. 1990); 20 C.F.R. §§ 404.130, 404.131. To be “disabled” means that the claimant 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 12 months.” 42 U.S.C. § 423(d)(1)(A).

For supplemental security income claims, a claimant becomes eligible in the first month where he or she is both disabled and has an application on file. 20 C.F.R. §§ 416.202-03, 416.330, 416.335.

The court must affirm the ALJ’s decision if it is supported by substantial evidence and if the ALJ applied the proper legal standards. Rebeck v. Barnhart, 317 F.Supp.2d 1263, 1271 (D.Kan. 2004). “Substantial evidence” is “more than a mere scintilla;” it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id., quoting Richardson v. Perales, 402 U.S. 389, 401 (1971). The court must examine the record as a whole, including whatever in the record fairly detracts from the weight of the defendant’s decision, and on that basis decide if substantial evidence supports the defendant’s decision. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994) (quoting Casias v. Secretary of Health & Human Services, 933 F.2d 799, 800-01 (10th Cir. 1991)). The court may not reverse the defendant’s choice between two reasonable but conflicting views, even if the court would have made a different choice if the matter were referred to the court de novo. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).


There is a five-step evaluation process followed in these cases which is described in the ALJ’s decision. (Tr. 12-13). First, it is determined whether the claimant is engaging in substantial gainful activity. Second, the ALJ decides whether the claimant has a medically determinable impairment that is “severe” or a combination of impairments which are “severe.” At step three, the ALJ decides whether the claimant’s impairments or combination of impairments meet or medically equal the criteria of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. Next, the ALJ determines the claimant’s residual functional capacity and then decides whether the claimant has the residual functional capacity to perform the requirements of his or her past relevant work. Finally, at the last step of the sequential evaluation process the ALJ determines whether the claimant is able to do any other work considering his or her residual functional capacity, age, education and work experience.

In this case, the ALJ decided plaintiff’s application should be denied on the basis of the fifth and last step of the evaluation process. The ALJ decided that plaintiff maintained the residual functional capacity to perform jobs that existed in significant numbers in the national economy.

The ALJ made the following specific findings in her decision. First, plaintiff meets the insured status requirements for Social Security benefits through December 31, 2013. Second, plaintiff did not engage in substantial gainful activity after April 5, 2009, the alleged onset date of disability. Third, plaintiff has the following severe impairments: chronic pain vs. fibromyalgia; polyarthritis, degenerative changes of the spine and bilateral knees, obesity, sleep apnea and depressive disorder. As to plaintiff’s depressive disorder, the ALJ found that it caused: a mild restriction in plaintiff’s activities of daily living; moderate difficulties in social functioning; moderate difficulties in concentration, persistence or pace; and no episodes of decompensation. (Tr. 14-15). As to plaintiff’s obesity, the ALJ with little or no elaboration stated the she considered the effects of plaintiff’s obesity when determining plaintiff’s residual functional capacity (“RFC”). (Tr. 15).

Fourth, the ALJ found that plaintiff does not have an impairment or combination of impairments that meet or medically equal the Listed Impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.

Fifth, the ALJ determined that plaintiff has the RFC to perform:

sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a), except the claimant should never climb ladders, ropes or scaffolds, crawl or crouch. The claimant can occasionally climb stairs and ramps, balance, stoop and kneel. The claimant should avoid concentrated exposure to cold, heat and vibration. Additionally, the claimant is limited to unskilled work and occasional interaction with the public and co-workers.

(Tr. 15). This RFC assessment is contrary to plaintiff’s testimony before the ALJ. Plaintiff testified that she could only sit or stand for five minutes at a time. (Tr. 34). She also testified that she lies down for three to four hours a day. (Tr. 40). She further stated that she falls asleep frequently during the day. (Tr. 39-40). The RFC assessment is also contrary to assessments by Dr. April Harris on September 24, 2010 (Tr. 515-16) and by Anita Louison, a physician’s assistant, on June 30, 2010 (Tr. 479-80). The ALJ said that these assessments were given little weight because Dr. Harris only saw plaintiff twice, the assessments are not consistent with the medical record as a whole (“particularly Dr. Morrow’s examination that evidences the [plaintiff] is able to perform postural and manipulative movements”) and because Louison is a physician’s assistant, not “an acceptable medical source.” (Tr. 18-19). Dr. Morrow’s report (which was based upon an April 24, 2010 examination) indicated that plaintiff had normal range of motion in all joints, a negative straight leg raising test and that plaintiff could pick up a coin, open a door and fasten a button. (Tr. 431). But, Dr. Morrow’s report also stated that plaintiff had “severe difficulty in all orthopedic maneuvers based on foot pain and lumbar ...

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