Castolenia ex rel. Castolenia v. Berryhill

BRINTON DANE CASTOLENIA,and CHELSEA KAY SMITH, on behalf of Bridget Castolenia, deceased, Plaintiffs, v. NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

Civil Action No. 18-cv-1016-REB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

May 6, 2019

Judge Robert E. Blackburn

ORDER AFFIRMING COMMISSIONER

Blackburn, J.

The matter before me is plaintiff's Complaint [#1],¹ filed May 1, 2018, seeking review of the Commissioner's decision denying plaintiff's claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401, et seq. I have jurisdiction to review the Commissioner's final decision under 42 U.S.C. § 405(g). The matter has been fully briefed, obviating the need for oral argument. I affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff alleges she is disabled as a result of status post laminectomies, status post bilateral shoulder fractures, bicipital tendonitis, mild osteoarthritis of the right hip, major depressive disorder, general anxiety disorder, panic disorder, and post-traumaticstress disorder. After her applications for disability insurance benefits and supplemental security income benefits were denied, plaintiff requested a hearing before an administrative law judge. This hearing was held on April 4, 2017. At the time of the hearing, plaintiff was 52 years old. She has a high school degree with some college and past relevant work experience as a medical assistant. She has not engaged in substantial gainful activity since at least February 1, 2012, her amended alleged date of onset.²

The ALJ found plaintiff was not disabled and therefore not entitled to disability insurance benefits or supplemental security income benefits. Although the medical evidence established plaintiff suffered from severe impairments, the judge found the severity of those impairments did not meet or equal any impairment listed in the social security regulations. The ALJ determined plaintiff had the residual functional capacity to perform a reduced range of light work with postural and environmental limitations and which did not require production-rate pace work. Because this determination did not preclude plaintiff's past relevant work as a medical assistant as it was generally performed, the ALJ found her not disabled at step four of the sequential evaluation. Plaintiff appealed this decision to the Appeals Council. The Council affirmed. Plaintiff then filed this action in federal court.

II. STANDARD OF REVIEW

A person is disabled within the meaning of the Social Security Act only if her physical and/or mental impairments preclude her from performing both her previous work and any other "substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2). "When a claimant has one or more severe impairments the Social Security [Act] requires the [Commissioner] to consider the combined effects of the impairments in making a disability determination." Campbell v. Bowen, 822 F.2d 1518, 1521 (10^th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of a severe impairment or combination of impairments does not require a finding that an individual is disabled within the meaning of the Social Security Act. To be disabling, the claimant's condition must be so functionally limiting as to preclude any substantial gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d 335, 338 (10^th Cir. 1995).

The Commissioner has established a quinquepartite sequential evaluation process for determining whether a claimant is disabled:

1. The ALJ must first ascertain whether the claimant is engaged in substantial gainful activity. A claimant who is working is not disabled regardless of the medical findings.

2. The ALJ must then determine whether the claimed impairment is "severe." A "severe impairment" must significantly limit the claimant's physical or mental ability to do basic work activities.

3. The ALJ must then determine if the impairment meets or equals in severity certain impairments described in Appendix 1 of the regulations.

4. If the claimant's impairment does not meet or equal a listed impairment, the ALJ must determine whether the claimant can perform her past work despite any limitations.

5. If the claimant does not have the residual functional capacity to perform her past work, the ALJ must decide whether the claimant can perform any other gainful and substantial work in the economy. This determination is made on the basis of the claimant's age, education, work experience, and residual functional capacity.

20 C.F.R. § 404.1520(a)(4)(i)-(v).³ See also Williams v. Bowen 844 F.2d 748, 750-52 (10^th Cir. 1988). The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294 n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v. Secretary of Health & Human Services, 933 F.2d 799, 801 (10^th Cir. 1991).

Review of the Commissioner's disability decision is limited to determining whether the ALJ applied the correct legal standard and whether the decision is supported by substantial evidence. Hamilton v. Secretary of Health and Human Services, 961 F.2d 1495, 1497-98 (10^th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194, 1196 (10^th Cir. 1990). Substantial evidence is evidence a reasonable mind would accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requiresmore than a scintilla but less than a preponderance of the evidence. Hedstrom v. Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). "Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10^th Cir. 1992). Further, "if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence." Thompson v. Sullivan, 987 F.2d 1482, 1487 (10^th Cir. 1993). Although a reviewing court should meticulously examine the record, it may not reweigh the evidence or substitute its discretion for that of the Commissioner. Id.

III. LEGAL ANALYSIS

Plaintiff suggests the ALJ erred in (1) weighing various medical opinions of record; (2) failing to include greater mental health limitations in his residual functional capacity assessment; and (3) discrediting plaintiff's subjective reports of pain and functional limitation. She also claims the Appeals Council should have remanded based on new evidence submitted at that level. Finding no reversible error in any of these particulars, I affirm.

Plaintiff first objects to the relative weight the ALJ afforded two of the medical source opinions of record. She maintains the ALJ should have placed more reliance on the opinion of consultative examiner Dr. Mark Osborne, who examined plaintiff in November 2015. Dr. Osborne suggested no limitations on the number of hours plaintiff could sit, stand, or walk during a normal, eight-hour workday, nor on her ability to bend, stoop, squat, crouch, or crawl, but stated that she could lift and carry no more than fivepounds frequently and ten pounds occasionally⁴ and could never reach overhead or perform other manipulative activities such as reaching, pushing, pulling, grasping, and fingering. (Tr. 475-476.) These limitations, which contemplate no more than sedentary work, would preclude plaintiff's past relevant work and thus undermine the ALJ's step four disability determination.

The ALJ gave this opinion "little weight," finding it both under-restrictive, insofar as the failure to place any limits on sitting, standing, or walking did not adequately account for plaintiff's hip and back impairments, and over-restrictive, in its proposed lifting restrictions. With respect to those restrictions particularly, the ALJ pointed to the treatment records of orthopedic surgeon Dr. Kim Furry as supporting a greater degree of functionality. In one particular at least, that reliance was misplaced. Although the ALJ characterized Dr. Furry's notes as stating that plaintiff's old humerus fractures "had healed well with good preservation of joint space" (Tr. 91), the record also indicated the fracture was "malunited" and with a "slight varus"⁵ and suggested this might be one cause of plaintiff's pain⁶ (Tr. 529-530).

Nevertheless, in the context of the record as a whole, this error undoubtedly was harmless. See Williams v. Chater, 1995 WL 490280 at *2 (10^th Cir. Aug.16, 1995) ("Procedural imperfection that does not affect a party's substantive rights is not a basis for reversal."); Lumpkin v. Colvin, 112 F.Supp.3d 1169, 1174 (D. Colo. 2015) ("[W]here [the] ALJ's opinion is otherwise amply supported by the record, error which does not prejudice [the] claimant will not warrant remand."). Given that plaintiff broke both shoulders (humeri) in an ATV accident in March 2005 (see Tr. 485), the malunion of the fracture occurred more than a dozen years prior to the ALJ's decision. Yet plaintiff continued to work as a medical assistant for years thereafter and did not seek any medical treatment for shoulder pain until September 2015. Moreover, at that time she reported her shoulder "suddenly became painful without any known injury or overuse" a few days prior to her visit to her doctor. (Tr. 456 (emphasis added).)

Moreover, it remains true, as the ALJ noted, that plaintiff had good range of motion and adequate strength in her upper extremities when examined by Dr. Furry in May 2016. (Tr. 91, 532.)⁷ Indeed, Dr. Osborne found plaintiff's upper body strength to be 5/5 bilaterally. (Tr. 475.) Dr. Osborne also questioned whether plaintiff gave full effort on range of motion tests of her...