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Ipson v. Berryhill

United States District Court, D. Utah, Central Division

September 8, 2017

RUSSEL K. IPSON, Plaintiff,
NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security, Defendant.




         District Judge Ted Stewart referred this case to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(B).[2] Before the court is Russel K. Ipson's (“Plaintiff”) appeal of the Commissioner's final decision determining that Plaintiff was not entitled to Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. See 42 U.S.C. §§ 401-434. After careful consideration of the written briefs and the complete record, the court has determined that oral argument is not necessary in this case.

         At the outset, the court recognizes that Plaintiff is proceeding pro se in this case. Accordingly, the court will construe his pleadings liberally. See, e.g., Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).


         Plaintiff alleges disability due to various physical and mental impairments. In September 2011, Plaintiff applied for DIB, alleging disability beginning on February 1, 2010.[3] Plaintiff's application was denied initially and upon reconsideration.[4] On March 28, 2012, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), [5] and that hearing was held on March 11, 2013.[6] On March 27, 2013, the ALJ issued a written decision denying Plaintiff's claim for DIB.[7] On September 15, 2014, the Appeals Council denied Plaintiff's request for review, [8] making the ALJ's decision the Commissioner's final decision for purposes of judicial review. See 42 U.S.C. § 405(g); 20 C.F.R. § 404.981.

         On November 20, 2014, Plaintiff filed his complaint in this case, [9] which was assigned to Judge Stewart.[10] After some proceedings irrelevant to this report and recommendation, this case was referred to Chief Magistrate Judge Warner under 28 U.S.C. § 636(b)(1)(B) on June 10, 2016.[11] The Commissioner filed her answer and the administrative record on September 27, 2016.[12]

         Plaintiff filed his opening brief on March 13, 2017.[13] The Commissioner filed her answer brief on May 9, 2017.[14] Plaintiff did not file a reply brief by the required deadline of May 30, 2017.


         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. § 404.1520(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 the steps that a claimant is or is not disabled, the subsequent steps need not be analyzed. See 20 C.F.R. § 404.1520(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. § 404.1520(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. § 404.1520(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. § 404.1520(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. § 404.1520(a)(4)(v). If it is determined that the claimant “can make an adjustment to other work, ” 20 C.F.R. § 404.1520(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, ” id., he is disabled and entitled to benefits.


         As the Commissioner has noted, it is difficult to discern from Plaintiff's opening brief the precise errors he believes the ALJ committed. However, it appears that Plaintiff is arguing that the ALJ (1) violated Plaintiff's due process rights by not allowing Plaintiff to fully present his case at the administrative hearing, (2) erred at step two by failing to sufficiently address the limitations arising from several of Plaintiff's alleged impairments, and (3) erred in the assessment of Plaintiff's RFC. The court will address those arguments in turn.

         I. Due Process

         Procedural due process applies to Social Security hearings. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Yount v. Barnhart, 416 F.3d 1233, 1235 (10th Cir. 2005). However, in order to establish a due process violation, Plaintiff must demonstrate that he was prejudiced. See Mays v. Colvin, 739 F.3d 569, 572-74 (10th Cir. 2014). Contrary to Plaintiff's assertion that he “was not given the opportunity to defend [his] case at the hearing, ” “was not heard at all, ” and “was not able to say anything, ”[15] both his attorney and the ALJ questioned him extensively about his medical conditions.[16] When Plaintiff's attorney asked him if there was anything he missed or anything additional that Plaintiff believed the ALJ should know about, Plaintiff said, “I can't think of anything.”[17] Furthermore, when the ALJ asked Plaintiff if they had covered everything that Plaintiff could think of that would affect his ability to work full time, Plaintiff responded, “I think so, yes.”[18]

         “[D]ue process requires notice and a meaningful opportunity to be heard.” In re C.W. Mining Co., 625 F.3d 1240, 1244 (10th Cir. 2010). Plaintiff appeared and had an opportunity to be heard before the ALJ. There was no denial of due process.

         Plaintiff's brief may be read to argue a due process violation related to the fact that the ALJ who presided over his hearing and issued the decision was not the same ALJ who was originally scheduled to hear his case. However, as with his other due process argument, he has not pointed to any prejudice resulting from the substitution. See Mays, 739 F.3d at 572-74 (requiring prejudice for a due process violation). Accordingly, this argument fails.

         II. ...

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