Tarpley v. Astrue

ZARA D. TARPLEY, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security Defendant.

Civil Action No. 12-cv-3242-WJM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: January 31, 2014

Judge William J. Martínez

ORDER AFFIRMING ADMINISTRATIVE LAW JUDGE'S DECISION

This social security benefits appeal is before the Court under 42 U.S.C. § 405(g). Plaintiff Zara D. Tarpley ("Plaintiff") challenges the final decision of Defendant, the Commissioner of Social Security ("Commissioner"), denying her application for disability insurance benefits. This decision affirmed a prior order by an administrative law judge ("ALJ"), who ruled Plaintiff was not disabled within the meaning of the Social Security Act ("Act"). This appeal followed.

For the reasons set forth below, the ALJ's decision denying Plaintiff's application for Social Security disability benefits is AFFIRMED.

I. BACKGROUND

Plaintiff was born on July 13, 1974 and was 29 years old on the alleged disability onset date. (Admin. Record ("R.") (ECF No. 9) at 11, 55.) Plaintiff has a high school education and has prior work experience as "an assembly worker, car hop, cashier and hotel housekeeper but has never worked at the substantial activity level." (R. at 64-65.)

Plaintiff first filed an application for supplemental security income on May 28, 1993. (R. at 10.) The application was denied on April 24, 1995, based on a finding that Plaintiff could engage in substantial gainful activity. (Id.) Plaintiff filed another claim on May 23, 1996, but the claim was denied on May 9, 1998, based on a finding that Plaintiff's impairments were not severe. (Id.) Plaintiff next filed an application for supplemental security income in 2002. (Id.) The application was dismissed in February 2003, due to abandonment by Plaintiff. (Id.) Plaintiff next filed an application for supplemental security income on September 10, 2003. (Id.) The application was denied on August 23, 2005, based on a finding that Plaintiff could engage in substantial gainful activity. (Id.)

This instant application for supplemental security income was filed on February 23, 2006, alleging that Plaintiff was disabled due to lower back pain and wrist pain. (R. at 55.) Plaintiff's application was denied and, upon a request for a hearing, her claims were heard by Administrative Law Judge ("ALJ") William Musseman on October 16, 2007. (R. at 58.) The ALJ found that Plaintiff was not disabled and denied her claim on January 7, 2008. (R. at 65.) The Appeals Council remanded the case to the ALJ for re-hearing. (R. at 10.) The ALJ held a second hearing on October 14, 2011. (Id.) Plaintiff and vocational expert Doris J. Shriver testified at the hearing. (Id.)

On November 7, 2011, the ALJ issued a written decision in accordance with the Commissioner's five-step sequential evaluation process.¹ (Id.) At step one, the ALJfound that Plaintiff had not engaged in substantial gainful activity since February 23, 2006. (R. at 13.) At step two, he found that Plaintiff suffered from "disorder of the back and fibromyalgia." (Id.) The ALJ did not find Plaintiff's pelvic pain, wrist pain, depression, or any other impairment to be a severe impairment. (Id.) At step three, the ALJ found that Plaintiff's disorder of the back and fibromyalgia, while severe impairments, did not meet any of the impairments or combination of impairments listed in the social security regulations. (R. at 17.) The ALJ assessed Plaintiff's residual functional capacity ("RFC"), finding that she had the RFC to perform "light" work as defined by the regulations, including occasional bending, squatting, kneeling, and climbing, and no over chest level work. (Id.) Given this RFC, at step four the ALJ found that Plaintiff could perform past relevant work as a cashier and fast food worker. (R. at 20.) At step five, the ALJ found that there were significant numbers of jobs in the national economy that Plaintiff could perform. (R. at 21.) Specifically, the ALJ found that Plaintiff could work as a retail sales clerk or a fast food worker. (Id.)

Accordingly, the ALJ found that Plaintiff was not disabled within the meaning of the Act and, thus, not entitled to benefits. (R. at 22.) The Appeals Council denied Plaintiff's request for review. (R. at 1.) Plaintiff then filed this action seeking review of the Commissioner's decision. (ECF No. 1.)

II. STANDARD OF REVIEW

The Court reviews the Commissioner's decision to determine whether substantial evidence in the record as a whole supports the factual findings and whether the correctlegal standards were applied. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. "It requires more than a scintilla, but less than a preponderance." Lax, 489 F.3d at1084. Evidence is not substantial if it is overwhelmed by other evidence in the record. Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005). In reviewing the Commissioner's decision, the Court may neither reweigh the evidence nor substitute its judgment for that of the agency. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). "On the other hand, 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 (10th Cir. 1993).

III. ANALYSIS

On appeal, Plaintiff raises four issues: (1) the ALJ erred in finding that Plaintiff is capable of performing past work; (2) the ALJ failed to state the specific RFC on a function-by-function basis; (3) the ALJ did not properly weigh the physicians' medical opinions; and (4) the ALJ did not properly assess Plaintiff's symptoms. (ECF No. 14 at 6-7.) The Court will address each of Plaintiff's arguments in turn.

A. Plaintiff's Past Work

Plaintiff contends that the ALJ erred in his step four conclusion that she is able to return to her past relevant work as a cashier or fast food worker. (ECF No. 14 at 12.) Specifically, Plaintiff notes that although the ALJ found that Plaintiff could perform her past relevant work (R. at 20), the ALJ had previously found that Plaintiff had no past relative work. (R. at 64).

"Past relevant work is work that [a plaintiff has] done within the past 15 years []that was substantial gainful activity . . . ." 20 C.R.F. § 416.960(b)(1). The parties concur that Plaintiff's prior work experience does not reach the level of substantial gainful activity ("SGA"). (ECF Nos. 14 at 13, 15 at 9.) The Court agrees. Plaintiff's earning records demonstrate that Plaintiff did not earn SGA levels in any of her prior employment. (R. at 152-55.) Thus, the ALJ's step four conclusion that Plaintiff could perform past relevant work was error.

However, the Court finds that the ALJ's error was harmless, because the ALJ made an alternative step five finding that Plaintiff is able to perform other jobs. (R. at 21.) See Schmidt v. Sullivan, 914 F.2d 117, 119 (7th Cir. 1990) (cert. denied 502 U.S. 90 (1991)) (noting ability to affirm on step-five grounds because ALJ had not "put all his eggs in the basket labeled not disabled from doing previous work.").

Accordingly, the ALJ's decision that Plaintiff was able to return to past work was not reversible error.

B. Articulating a Specific RFC

Plaintiff contends that the ALJ violated Social Security Ruling ("SSR") 96-8p by failing to consider all of Plaintiff's limitations on a function-by-function basis. (ECF No. 14 at 14.)

As a general rule, an "RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis . . . . Only after that may RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy." SSR 96-8p, 1996 WL 374184, at * 1 (July 2, 1996).

The function-by-function assessment requires the ALJ to separately address:

[A]n individual's limitations and restrictions of physical strength and defines the individual's remaining abilities to perform each of seven strength demands: sitting, standing, walking, lifting, carrying, pushing, and pulling. Each function must be considered separately . . . even if the final RFC assessment will combine activities . . . . It is especially important that adjudicators consider the capacities separately when deciding whether an individual can do past relevant work.

Id. at * 5.

The ALJ found that Plaintiff had the RFC to "perform light work as defined in 20 CFR 416.967(b) with occasional bending, squatting, kneeling, and climbing and no over chest level work." (R. at 17.) Although the final RFC determination only referred to "light work," the subsequent analysis discussed in detail the various medical reports relating to Plaintiff's ability to perform all seven strength demands.

A review of the record shows that the ALJ found Plaintiff could "occasionally lift/carry 20 pounds and frequently life/carry 10 pounds. She could sit for six hours of an eight hour day and stand/walk for six hours of an eight hour day." (R. at 20.) The medical evidence also shows that Plaintiff had no limitations with pushing and/or pulling. (R. at 280.) Thus, the Court finds that the ALJ's RFC in conjunction with the analysis that follows satisfies SSR 96-8. See Ren v. Astrue, 2009 WL 3497785, at *6 (D. Colo. Oct. 29, 2009) (finding that SSR 96-8p was satisfied when the ALJ analyzed the plaintiff's ability to perform all seven strength functions in the section immediately following the RFC).

Moreover, even if the ALJ erred by failing to assess Plaintiff's abilities on a function-by-function basis, in light of the rest of the articulated RFC, his analysis, and the review of the record, "that error is merely a technical error minor enough not toundermine confidence in the determination of the case." Gomez v. Astrue, 2013 WL 627154, at *9 (D. Colo. Feb. 20, 2013) (internal citation omitted).

Thus, the Court re...