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Barbara C. v. Berryhill

United States District Court, D. Utah, Central Division

September 25, 2018

BARBARA C., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         All parties in this case have consented to Chief Magistrate Judge Paul M. Warner conducting all proceedings, including entry of final judgment, with appeal to the United States Court of Appeals for the Tenth Circuit.[1] See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. Before the court is plaintiff Barbara C.'s (“Plaintiff”) appeal of the Acting Commissioner of Social Security's (“Commissioner”) final decision denying her claim for disability insurance benefits (“DIB”) and supplemental security income (“SSI”).[2] After careful review of the administrative record, the parties' briefs, and the relevant law, the court finds no reversible legal error and concludes that the Commissioner's decision is supported by substantial evidence. The court therefore affirms the decision.


         Plaintiff filed an application for DIB on November 26, 2012 and SSI on January 18, 2013, alleging disability beginning November 20, 2012, due to diabetes mellitus, depression, anxiety, and intellectual disability.[3] Plaintiff's claims were denied initially and on reconsideration.[4] Plaintiff requested a hearing before an administrative law judge (“ALJ”). Following two hearings before ALJ Gilbert A. Martinez, the ALJ issued his unfavorable decision dated May 25, 2016.[5] The ALJ found that Plaintiff suffered from the severe impairments of diabetes mellitus, type 2; anxiety; and borderline intellectual functioning.[6] However, the ALJ did not find that any of these impairments or combination of impairments met or medically equaled the severity of a per se disabling impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1 (“Listing”).[7] The ALJ concluded that Plaintiff retained the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b), with the following mental limitations: she could understand, remember, and carry out short, simple instructions; she could make simple work related decisions; and she could interact with supervisors and coworkers, but should have only brief and superficial contact with the public.[8] Given this RFC, the ALJ found that Plaintiff could return to her past work as a housekeeper, and could also perform work existing in significant numbers in the national economy.[9] Therefore, the ALJ found that Plaintiff was not disabled under the Act.[10] The Appeals Council denied Plaintiff's request for review, [11] making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. See 42 U.S.C. § 405(g); 20 C.F.R. §§ 404.981, 416.1481.


         The 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) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005)). 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, the court cannot “reweigh the evidence” or “substitute” its judgment for that of the ALJ. Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006) (quotations and citations omitted). “[F]ailure 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)-(iv), 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 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), 416.920(a)(4). The five-step sequential disability determination is as follows:

1. If the claimant is performing substantial gainful work she is not disabled.
2. If the claimant is not performing substantial gainful work, her impairment(s) must be severe before she can be found to be disabled.
3. If claimant is not performing substantial gainful work and has a severe impairment(s) that has lasted or is expected to last for a continuous period of at least twelve months, and her impairment(s) meets or medically equals [a Listing], the claimant is presumed disabled without further inquiry.
4. If the claimant's impairment(s) does not prevent her from doing her past relevant work, she is not disabled.
5. Even if the claimant's impairment(s) prevent her from performing her past relevant work, if other work exists in significant numbers in the national economy that accommodates her [RFC] and vocational factors, she is not disabled.

Martin v. Barnhart, 470 F.Supp.2d 1324, 1326-27 (D. Utah 2006); see 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); Williams, 844 F.2d at 750-51.

         The claimant bears the burden of proof beginning with step one and ending with step four. See Williams, 844 F.2d at 750-51; Henrie v. U.S. Dep't of Health & Human Servs., 13 F.3d 359, 360 (10th Cir. 1993). At step five, the burden of proof shifts to the Commissioner to establish “whether the claimant has the [RFC] . . . to perform other work in the national economy in view of his [or her] age, education, and work experience.” Williams, 844 F.2d at 751 (quotations and citations omitted); see 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(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), 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, ” id., he is disabled and entitled to benefits.


         Plaintiff's opening brief alleges three flaws in the ALJ's decision, which Plaintiff argues merit reversal. First, Plaintiff argues that the ALJ's decision should be reversed because the ALJ substituted his own lay opinion for that of two medical professionals. Second, the ALJ alleges that the ALJ failed to consider Plaintiff's limitations under Listing 12.05 for intellectual disability. Finally, Plaintiff argues that the ALJ committed reversible error by failing to assign weight and explain the weight assigned to the medical opinion of John Hardy, Ph.D. (“Dr. Hardy”). The court will address Plaintiff's first two arguments together, as they both relate to Plaintiff's IQ scores, and will then address Plaintiff's third argument.

         I. ALJ Did Not Improperly Substitute His Own Opinion Because Further IQ Testing Was Not Required for ALJ to Conclude That Plaintiff Did Not Meet a Listing.

         The Plaintiff first argues that the ALJ improperly substituted his judgment for that of medical professionals when he failed to pursue additional IQ testing. Plaintiff also argues that the ALJ erred by failing to consider the intellectual disability Listing (Listing 12.05). The Commissioner argues that although there was inconsistent evidence, the ALJ did not need to pursue additional IQ testing because other evidence in the record was sufficient to support a finding that Plaintiff did not meet Listing 12.05.

         Pursuant to the regulations in effect when the ALJ made his decision, if all the evidence received by the ALJ, “including medical opinion(s), is consistent and there is sufficient evidence for [the ALJ] to determine whether [the claimant] is disabled, [the ALJ] will make [his] determination based on that evidence.” 20 C.F.R. §§ 404.1520b(a), 416.920b(a). If the evidence is inconsistent, the ALJ “will weigh the relevant evidence and see whether [he] can determine whether [the claimant] is disabled based on the evidence” the ALJ has. Id. at ยงยง 404.1520b(b), 416.920(b). However, if the evidence is consistent but insufficient to determine whether the claimant is disabled, or if after weighing ...

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