Jump To

Top Caption Trial Court Document The text of this document was obtained by analyzing a scanned document and may have typos.

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 10, 2026 Get Citation Alerts Download PDF Add Note

Z.S. v. Frank Bisignano, Commissioner of Social Security

District Court, D. Colorado

• Citations: None known
• Docket Number: 1:24-cv-02458

• Precedential Status: Unknown Status

• Opinion

• Authorities (17)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Trial Court Document

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Robert E. Blackburn

Civil Action No. 24-cv-02458-REB

Z.S.

Plaintiff,

v.

FRANK BISIGNANO,1 Commissioner of Social Security,

Defendant.

ORDER AFFIRMING COMMISSIONER

Blackburn, J.

The matter before me is plaintiff’s Complaint [#1],2 filed pro se September 6,
2024,3 seeking review of the Commissioner’s decision denying plaintiff’s claim for
disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et
seq.4 I have jurisdiction to review the Commissioner’s final decision under 42 U.S.C. §

1 On May 6, 2025, the Senate confirmed Frank Bisignano as Commissioner of Social Security.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Frank Bisignano should be substituted for
Leland Dudek, former Acting Commissioner of Social Security, as the defendant in this suit. No further
action need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social
Security Act, 42 U.S.C. § 405 (g).

2 “[#1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention
throughout this order.

3 Both Defendant’s First Unopposed Motion for an Extension of Time To Answer or
Otherwise Respond to Plaintiff’s Complaint [#8], filed November 4, 2024, and plaintiff’s Application
for an Extension of Time To Submit Opening Brief [#13], filed December 31, 2024, are now moot and
will be denied on that basis. Plaintiff’s Motion for Default Judgment [#11], filed December 11, 2024, is
denied. (These motions were not more timely resolved because, due to a docketing error, this case was
not properly assigned to either the premerits management docket or to an Article I district judge until
March 5, 2026 [#16].)

4 Because plaintiff is proceeding pro se, I construe his pleadings and papers more liberally and
hold them to a less stringent standard than formal pleadings drafted by attorneys-at-law. See Erickson v.
Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d
405 (g). The matter has been fully briefed, obviating the need for oral argument. I
affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff alleges he is disabled as a result of degenerative disc disease and

chronic pain syndrome. After his application for disability insurance benefits was
denied, plaintiff requested a hearing before an administrative law judge. This hearing
was held on November 13, 2023. At the time of the hearing, plaintiff was 49 years old.
He has a high school education and past relevant work experience as a carpenter and a
retail store manager. He did not engage in substantial gainful activity between March 1,
2022, his alleged date of onset, and December 31, 2022, his date last insured.
The ALJ found plaintiff not disabled and therefore not entitled to disability
insurance benefits. Although the evidence established plaintiff suffered from severe
impairments, the judge concluded the severity of those impairments did not meet or
equal any impairment listed in the social security regulations. Other alleged

impairments were found to be non-severe. The ALJ found plaintiff had the residual
functional capacity to perform a reduced range of unskilled light work with postural and
environmental limitations. Although this finding precluded plaintiff’s past relevant work,
the ALJ found there were jobs existing in significant numbers in the local and national
economies that he could perform. He therefore found plaintiff not disabled at step five
of the sequential evaluation. Plaintiff appealed this decision to the Appeals Council.
The Council affirmed. Plaintiff then filed this action in federal court.

1070, 1076 (10th Cir. 2007); Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir.1991) (citing Haines v.
Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)).
2

II. STANDARD OF REVIEW

A person is disabled within the meaning of the Social Security Act only if his
physical and/or mental impairments preclude him from performing both his 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 (10th 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 (10th 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
3

impairment, the ALJ must determine whether the claimant

can perform his past work despite any limitations.

5. If the claimant does not have the residual functional capacity
to perform his 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 (b)-(f). See also Williams v. Bowen 844 F.2d 748, 750-52 (10th
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 (10th 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 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would
accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires
more 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.”
4

Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th 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 (10th 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

In a single claim of error, plaintiff asserts the ALJ erred in finding he was not
presumptively disabled at step three of the sequential evaluation. Finding no such
error, I affirm.

The Commissioner’s Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P, App. 1
(effective Feb. 18, 2025), sets forth medical criteria pursuant to which impairments of
various bodily systems will be considered presumptively disabling. See 20 C.F.R. §
404.1520 (d). Section 1.00 addresses musculoskeletal disorders generally, and

subsection 1.15 sets forth the criteria for “disorders of the skeletal spine resulting in
compromise of a nerve root(s).” For an impairment to be considered presumptively
disabling, the claimant must show his impairment satisfies all the criteria of a listing.
See Sanchez v. Colvin, 2016 WL 1165543 at *3 (D. Colo. March 25, 2016). “An
impairment that manifests only some of those criteria, no matter how severely, does not
qualify.” Sullivan v. Zebley, 493 U.S. 521, 531, 110 S.Ct. 885, 891, 107 L.Ed.2d 967 (1990) (footnote omitted). The burden is on the claimant to adduce medical evidence
sufficient to demonstrate he is disabled at step three. Id., 110 S.Ct. at 891; Fischer-
Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir.2005).

Under Listing 1.15, a disorder of the skeletal spine resulting in compression of
5

one or more nerve roots is considered presumptively disabling when four primary
criteria are shown. Among these is the requirement to adduce evidence demonstrating
[an i]mpairment-related physical limitation of musculoskeletal

functioning that has lasted, or is expected to last, for a

continuous period of at least 12 months, and medical

documentation of at least one of the following:

1. A documented medical need for a walker, bilateral canes, or

bilateral crutches . . .

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.15D1 (internal citations omitted). As used in
the listings, an “assistive device” is “any device that you use to improve your stability,
dexterity, or mobility” for which there is a “documented medical need.” A “documented
medical need” is one for which “there is evidence from a medical source that supports
your medical need for an assistive device for a continuous period of at least 12 months”
which “describe[s] any limitation(s) in your upper or lower extremity functioning and the
circumstances for which you need to use the assistive device.” Id. § 1.00C6a (internal
citations omitted).

The ALJ concluded at step three that plaintiff’s degenerative disc disease did not
meet this aspect of the definition. (Tr. 16.)5 The evidence before me is sufficient to
support that conclusion. Moreover, and even if it were not, the error undoubtedly was
harmless, as the evidence plainly shows plaintiff’s impairment did not meet the most
basic requirement of the listing.

The evidence shows plaintiff was using a walker at the time he was admitted to
the hospital on May 12, 2022, with symptoms of alcohol withdrawal and ataxia in his

5 The ALJ also concluded there was no evidence that the other two methods of satisfying this
subsection, which address the inability to use one or both upper extremities, were met. (Tr. 16.) Plaintiff
offers no argument and points to no evidence suggesting these additional conclusions were erroneous.
lower bilateral extremities. (Tr. 499-500, 505, 515.) However, plaintiff stated he had not
required an assistive device until recently. A physical therapy consultant determined
plaintiff was unable to ambulate independently or safely, and he was admitted to the
hospital as an inpatient for several days to manage his alcohol withdrawal symptoms.
(Tr. 505-506 517.)

While plaintiff was still in the hospital, a physical therapist6 noted on a check-box
form that plaintiff had a documented medical need for a walker. (Tr. 203.) However,
there was no accompanying statement from a medical source describing the

circumstances for which plaintiff needed such a device. Moreover, the evidence shows
plaintiff’s balance and ambulation improved greatly during his course of care at an
outpatient rehabilitation facility.7 Further, and even if I could infer as much from the
medical record – which would be contrary to the demands of the listing – the evidence
regarding plaintiff’s further treatment would not support a finding that plaintiff required

6 Although the parties do not raise the issue, it is questionable whether a physical therapist can
offer a “medical opinion” within the meaning of the listings. See Terwilliger v. Commissioner of Social
Security Administration, 801 Fed. Appx. 614, 626 (10th Cir. 2020) (“[A] a physical therapist is not an
‘acceptable medical source’ and cannot offer a medical opinion[.]” (citing SSR 06-03p, 2006 WL 2329939 at *1-2 (SSA Aug. 9, 2006)).

7 Plaintiff was admitted to the facility on May 23, 2022, and received physical, occupational, and
recreational therapy and counseling. (Tr. 679, 686.) When he was discharged ten days later, it was
reported he “had a great deal of improvement” during his inpatient stay and that his “functional level at the
time of discharge greatly improved compared to the functional level at the time of admission,”
demonstrating plaintiff “greatly benefit[t]ed from the therapeutic interventions offered in the acute inpatient
rehabilitation facility.” (Tr. 740.) His balance and ability to walk unaided had improved and he only
occasionally suffered a loss of balance. He was either independent or “modified independent” with issues
of rising from a seated position, transferring to a chair or car, walking at least 150 feet in a corridor or
similar space, and climbing up and down steps with or without a rail. (Tr. 689, 742.) Overall, his multiple
medical conditions were found to be either stable and/or improving, and he was advised to continue with
his various therapeutic interventions. (Tr. 695.) He was deemed stable for discharge. (Tr. 740.)
7

an assistive device for a continuous period of at least twelve months.8

Finally, apart from all these evidentiary deficiencies, and even if the ALJ erred in
finding plaintiff did not have a documented medical need for an assistive device within
the definition of the listing, any such error undoubtedly would be harmless. See
Williams v. Chater, 1995 WL 490280 at *2 (10th 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.”). For a cervical MRI performed in May 2022 showed
no cervical nerve root impingement at all. (See Tr. 528, 1324.) As Listing 1.15 is not
even implicated where there is no compression of a nerve root, plaintiff’s impairment
cannot be presumptively disabling thereunder, regardless whether he required an
assistive device to ambulate.

For these reasons, I find plaintiff fails to substantiate any basis for reversing the
ALJ’s disability determination. I therefore affirm.

IV. ORDERS

I thus find no reversible error in the ALJ’s disability determination, which
accordingly must be affirmed.

8 Following his discharge, at an appointment in late June 2022, plaintiff had graduated to a cane,
and it was noted that his balance had improved. (Tr. 1336.) See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
1.15D1 (requiring evidence of need for bilateral canes to satisfy listing). At a follow-up appointment in
November 2022, shortly before his date last insured, plaintiff was found to have a normal gait without the
use of an assistive device. (Tr. 1326.) In mid-January 2023, a provider refused plaintiff’s request to fill out
a Med-9 form in support of his claim for disability because “[h]e has no restrictions from our perspective.”
(Tr. 1361.)

8

THEREFORE IT IS ORDERED as follows:
1. That the conclusion of the Commissioner through the Administrative Law
Judge that plaintiff was not disabled is affirmed;
2. That Defendant's First UNnopposed Motion for an Extension of Time To
Answer or Otherwise Respond to Plaintiff's Complaint [#8], filed November 4, 2024,
is denied as moot;
3. That plaintiff's Application for an Extension of Time To Submit Opening
Brief [#13], filed December 31, 2024, is denied as moot; and
4. That plaintiffs Motion for Default Judgment [#11], filed December 11, 2024,
is denied.
Dated March 10, 2026, at Denver, Colorado.
BY THE COURT:

                                 Robert E. Blackburn 
                                  United States District Judge