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Gilson v. Colvin

United States District Court, D. Utah

March 8, 2017

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



         The parties consented to this court's jurisdiction under 28 U.S.C. 636(c). (ECF No. 13.) Currently pending before the court is Plaintiff Shannon Archibald Gilson's (“Plaintiff”) appeal of the Commissioner of Social Security's (“Commissioner”) decision denying Plaintiff's claim for Disability Insurance Benefits and Supplemental Social Security Income. The court initially scheduled argument for March 9, 2017. (ECF No. 31.) After reviewing the record, the court determined oral argument was not necessary and struck the hearing. (ECF No. 33.) Having considered the parties' briefs, the administrative record, and the relevant law, this court AFFIRMS the Commissioner's decision.


         Plaintiff applied for Social Security Disability Insurance Benefits and Supplemental Social Security Income in August 2012. (Tr. 195-240.) Plaintiff's initial application was denied. (Tr. 125-30, 135-40.) On July 24, 2014, ALJ Maryanne Lunderman issued her decision denying benefits to Plaintiff. (Tr. 28-41.) The Appeals Council denied Plaintiff's request for review, making it the agency's final decision. (Tr. 1-5.) Plaintiff then filed the present suit.


         Plaintiff was 40 years old on her alleged onset date in January 2010. (Tr. 225.) Plaintiff completed high school in 1987. (Tr. 853.) She completed cosmetology school in 1996. (Tr. 250, 853.) Plaintiff previously worked as a nail technician. (Tr. 250.) Plaintiff's medical records show she visited the ER in 2008, where she underwent a crisis evaluation for suicidal ideation. (Tr. 408.) Plaintiff was also psychiatrically admitted to two hospitals in 2008. (Tr. 1652-82, 1683- 96.) There is a gap in the medical records for nearly three years until January 2011, when Plaintiff was psychiatrically admitted to the hospital, again with suicidal ideation. During this January 2011 visit, she was diagnosed with bipolar affective disorder, generalized anxiety disorder, dysthymia, panic disorder with agoraphobia, and alcohol abuse with the possibility of opiate abuse. (Tr. 383.) She was discharged two weeks later and appeared “both physically and psychiatrically stable.” (Tr. 390.) In July 2011 Plaintiff received outpatient treatment for depression and migraines. Both conditions appear to have been successfully treated with medication. (Tr. 596-97, 690, 889-90.) In February 2012, Michael H. Sumko, D.O., evaluated Plaintiff for bilateral numbness and tingling in her hands consistent with carpel tunnel syndrome. (Tr. 1699.) While Dr. Sumko initially recommended conservative treatment, he performed surgery in April 2012. (Tr. 961.) After the surgery, Plaintiff's numbness and tingling abated, but she complained of pain from her small finger to her elbow. (Tr. 816-18.) Dr. Sumko referred Plaintiff to a pain clinic, but she declined to go. (Tr. 818.) Finally, during 2013 Plaintiff received treatment for various back pains, mental disturbances, [1] and migraines, all of which appear to have been successfully treated with medications. (Tr. 1076-1282.)


         a. Definition of Disability Under the Act

         The Act states that an individual is disabled “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 . . . .” 42 U.S.C. § 423(d)(2)(A). The disabling impairment must last, or be expected to last, for at least twelve consecutive months. Id.; Barnhart v. Walton, 535 U.S. 212, 214-15 (2002).

         b. Process for Determining Disability Under the Act

         To determine whether a claimant is disabled, Social Security regulations set forth a five-step sequential evaluation process. The adjudicator considers whether a claimant: (1) engaged in substantial gainful activity during the alleged disability period, (2) had a severe impairment, (3) had a condition that met or medically equaled the severity of a listed impairment, (4) could return to his past relevant work, and if not (5) could perform other work in the national economy. 20 C.F.R. § 404.1520(a)(4). If a decision regarding the claimant's disability can be reached at any step in the sequential evaluation process, further evaluation is unnecessary. Id.

         c. Standard of Review

         A district court reviews the Commissioner's decision to determine whether substantial evidence in the record as a whole supports the factual findings, and whether the correct legal standards were applied. Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. The court may neither reweigh the evidence nor substitute its judgment for that of the ALJ. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). Where the evidence as a whole can support the agency's decision or an award of benefits, the court must affirm the agency's decision. Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).


         At step one, the ALJ found that Plaintiff had not been engaged in substantial gainful activity since her alleged onset date, January 2, 2010. (Tr. 30.) The ALJ also found that Plaintiff suffered from four severe impairments: bilateral carpal tunnel syndrome, migraine headaches, degenerative disc disease of the lumbar spine, and a mental impairment variously diagnosed to include several disorders (including post-traumatic stress disorder, bi-polar disorder, generalized anxiety disorder, and alcohol abuse in alleged remission). (Id.) At step three, the ALJ determined that Plaintiff did not suffer from an impairment that met the criteria of any listed impairment, or was the medical equivalent of a listed impairment. (Id.) At step four, the ALJ found Plaintiff could not perform her past relevant work. (Tr. 40.) At step five, the ALJ found Plaintiff was capable of performing work that existed in the national economy. Thus, the ALJ found Plaintiff not disabled. (Tr. 40-41)

         V. DISCUSSION

         Plaintiff alleges four primary errors on appeal. First, Plaintiff alleges the ALJ failed to review certain materials submitted after the administrative hearing. Second, Plaintiff contends that the ALJ did not properly consider Dr. Kimberly Page's opinions. Third, Plaintiff argues the ALJ did not consider all of Plaintiff's impairments when determining Plaintiff's RFC (residual functioning capacity). Fourth, Plaintiff argues the ALJ's credibility determination is not supported by substantial evidence. The court will examine these arguments in the order raised.

         a. The ALJ reviewed the necessary materials submitted post-hearing.

         Plaintiff argues that the ALJ and Appeals Council did not properly consider evidence Plaintiff submitted after the administrative hearing. Plaintiff argues she is entitled to remand under Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003).[2] Under Threet, remand is appropriate when evidence submitted for the first time to the Appeals Council is (1) new, non-cumulative; (2) material (meaning likely to change the ...

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