United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER AFFIRMING THE
COMMISSIONER'S FINAL DECISION DENYING DISABILITY BENEFITS
CECILIA M. ROMERO, MAGISTRATE JUDGE
Judge Cecilia M. Romero
Amber P (Ms. P or Plaintiff), pursuant to 42
U.S.C. § 405(g), seeks judicial review of the decision
of the Acting Commissioner of Social Security (Commissioner
or Defendant) denying her claims for Supplemental Security
Income (SSI) under Title XVI of the Social Security Act (the
Act). Plaintiff seeks a closed period of disability from
November 12, 2014 to June 30, 2016, when she returned to work
or substantial gainful activity (Tr. 15). After careful
review of the entire record, the parties' briefs, and
arguments presented at a hearing held on July 26, 2019, the
undersigned concludes that the Commissioner's decision is
supported by substantial evidence and free of harmful legal
error and is, therefore, AFFIRMED
alleges disability during the closed period of time due to
spinal impairments, migraines, organic mental disorder and
major depressive disorder (Tr. 34). A hearing was held before
an administrative law judge (ALJ) on March 15, 2017, and the
ALJ denied Ms. P's claim on May 9, 2017. The appeals
council denied her request for review on April 30, 2018 and
this appeal followed.
deciding Ms. P's case, the ALJ followed the five-step
sequential evaluation process for evaluating disability
claims (Tr. 55-75). See generally 20 C.F.R. §
404.1520(a)(4). At step two of the required five-step
sequential evaluation process, the ALJ found Plaintiff had
the severe impairments of lumbar degenerative disc disease
and a major depressive disorder (Tr. 17). The ALJ rejected
Plaintiff's alleged impairment of migraine headaches.
Next, the ALJ found Ms. P's impairments or combination of
impairments did not medically equal or meet a listed
impairment. Specifically, the ALJ considered listing 1.04
disorders of the spine, and Plaintiff's mental
impairments under listing 12.04. The ALJ found that Ms. P had
the residual functional capacity (RFC) to perform light work
as defined in 20 C.F.R. 416.967(b) with certain limitations.
These included inter alia, Ms. P “[c]an lift
up to 20 pounds occasionally and 10 pounds frequently”,
“[c]an sit up to six hours and can stand and/or walk up
to six hours total in an eight-hour workday”, and she
could “perform only simple work task, [and] make only
simple work-related decisions … in a routine work
setting.” (Tr. 19). At step four, the ALJ found
Plaintiff could not perform her past relevant work as a
receptionist. And, at step five, the ALJ found Ms. P could
perform other jobs in the national economy such as
cleaner/housekeeper, ticket taker and cashier II (Tr. 24).
Therefore, she was not disabled and not entitled to SSI
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. As the Supreme Court recently
reiterated, “[o]n judicial review, an ALJ's factual
findings . . . ‘shall be conclusive' if supported
by ‘substantial evidence.'” v.
Berryhill, 139 S.Ct. 1148, 1153 (2019) (quoting 42
U.S.C. § 405(g)). The threshold for evidentiary
sufficiency under the substantial evidence standard is
“not high.” Biestek, 139 S.Ct. at 1154.
Substantial evidence is “more than a mere
scintilla”; it means only “such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” Id. (quotations and citations
omitted). The court's inquiry “as is usually true
in determining the substantiality of evidence, is
case-by-case, ” and “defers to the presiding ALJ,
who has seen the hearing up close.” Biestek,
139 S.Ct. at 1157.
review of the Commissioner's final decision under 42
U.S.C. § 405(g) is limited to whether the decision of
the Commissioner is supported by substantial evidence in the
record as a whole. Cowan v. Astrue, 552 F.3d 1182,
1184-85 (10th Cir. 2008). It requires more than a scintilla,
but less than a preponderance. Zoltanski v. F.A.A.,
372 F.3d 1195, 1200 (10th Cir. 2004). The court's role is
not to reweigh the evidence or substitute its judgment for
that of the Commissioner. Cowan, 552 F.3d at 1185.
Rather, the court must determine whether the
Commissioner's final decision is “free from legal
error and supported by substantial evidence.” Wall
v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
raises two primary arguments on appeal asserting the ALJ
erred. Before turning to these specific arguments the Court
considers the medical evidence in the record and the
ALJ's findings in reference to that evidence.
Court finds that substantial evidence exists in the record to
support the ALJ's decision. As to Ms. P's physical
limitations due to back pain, the record supported the
ALJ's finding that she was able to perform light work. In
November 2014, the same month as her application, an
examination showed Ms. P had normal spinal motion and walked
with a normal gait (Tr. 420). State agency physicians Drs.
Taggart and McKay opined that Ms. P could perform light work
(Tr. 76-77, 94-95). Medical records demonstrate that,
subsequent to her November 2014 application, Ms. P did not
complain of increased back pain until March 2015 (Tr. 484).
Even at that time, showing some loss of range of motion and a
positive straight leg raise test, Plaintiff retained full
strength throughout and had no problems with ambulation or
rising from a seated position (Tr. 485). An MRI at the time
showed a mild protrusion and mild stenosis (Tr. 502). While
Plaintiff's back pain increased, she had a successful
surgery that resolved the issue in September 2015 (Tr.
550-53). Within one month after surgery, Ms. P reported
significant improvement and had full strength in her lower
extremities and a stable gait (Tr. 575). Ms. P testified that
the surgery resolved her back pain and she was able to return
to work. The only reason she did not work until June 2016 was
that she had been applying but had not obtained a job until
that time (Tr. 44-45).
evidence also supported the ALJ's decision as to mental
limitations. While Ms. P was treated for depression, the
records supported the ALJ's finding that she could still
perform simple work. A neuropsychological assessment with Dr.
Caine showed that Plaintiff had a low-average to average IQ
and was more of a hands on learner, suggesting her career
choices should include that consideration (Tr. 520). Dr.
Cain's evaluation was consistent with a limitation to
simple work. At a visit with Dr. Zimmerman in January 2015,
Plaintiff was oriented with normal attention, concentration,
fluency, memory, knowledge base, and affect (Tr. 491). The
agency investigated further and sent Ms. P for a
psychological consultation with Dr. Hardy in February 2015
(Tr. 449-53). On examination, Ms. P was casually dressed with
“excellent” grooming and hygiene (Tr. 450). Her
short-term memory was adequate and her long-term memory was
good (Tr. 450). Plaintiff reported that she did some chores,
could cook and follow a simple recipe, and could shop
independently (Tr. 452). Dr. Hardy noted that Plaintiff
presented with mood dysphoria and anxiety that was directly
attributable to her marital situation, but that Plaintiff
showed adequate attention and concentration (Tr. 452).
Plaintiff admitted that her challenges were primarily due to
her separation and possible divorce with her husband (Tr.
451). State agency psychologists Drs. Gill and Kjolby opined
that there was no evidence of a sustained 12-month period
that indicated an inability to work for psychological reasons
(Tr. 73, 92). Physician's assistant Mathis noted in March
2015 that Plaintiff's affect was pleasant with a full
range of emotion (Tr. 485). She had no difficulty with
concentration or memory (Tr. 485). Her thought processes were
coherent and appropriate (Tr. 485). Her judgment, insight,
speech, memory, and orientation were all normal (Tr. 485).
Medical expert Dr. Farnsworth reviewed Plaintiff's
medical records and testified at the hearing that, in her
opinion, Plaintiff would be able to perform simple work (Tr.
this backdrop the Court now turns to Plaintiff's specific
arguments of error. Ms. P. argues the ALJ erred in failing to
address the supportive opinion of Dr. David Ericksen and
failed to assign proper weight to the other treating and
examining source opinions. Second, Ms. P. asserts, the ALJ
erred in ...