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Lucero v. Colvin

United States District Court, D. Colorado

March 27, 2014

ROSS LUCERO, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

ORDER

WILEY Y. DANIEL, Senior District Judge.

THIS MATTER is before the Court on review of the Commissioner's decision that denied Plaintiff's application for disability insurance benefits ["DIB"] and supplemental security income ["SSI"]. For the reasons stated below, this case is reversed and remanded to the Commissioner for further fact finding.

I. BACKGROUND

In May 2009, Plaintiff filed applications for disability benefits under Titles II and XVI of the Social Security Act ("the Act"). (Administrative Record ["AR"] 160-66.) Plaintiff was born on February 27, 1961, and was 43 years old on the alleged onset date and 50 years old on the date of the ALJ's decision. ( Id. 28, 30, 160.) He has an 11th grade education ( id. 204), and worked as a cashier. ( Id. 60, 206.) Plaintiff claimed that he became disabled on April 25, 2004, due to back surgery. ( Id. 199.) Relevant to this, the record reveals that Plaintiff has a long history of congenital spine defects and back injuries with episodes in 1984, 1998, 2000, 2003 and 2004. ( Id. 336, 304.)

The Colorado Disability Determination Services denied Plaintiff's claims (AR 63, 74, 87-100), and he requested a hearing before an ALJ. ( Id. 101-02.) Following a hearing in July 2011 ( id. 35-62), an ALJ issued a decision dated August 17, 2011, in which he concluded that Plaintiff was not disabled within the meaning of the Act. ( Id. 14-34.)

At step one, the ALJ determined that Plaintiff met the insured status requirements of the Act through December 31, 2009, and that he had not engaged in substantial gainful activity since April 25, 2004, the alleged onset date. (AR 19.) At step two, the ALJ found that Plaintiff had the following "severe" impairments: degenerative lumbar disc disease status-post laminectomy, osteoarthritis right knee, bilateral hip bursitis, chronic pain syndrome, and gout. ( Id. ) The ALJ found at step three that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the criteria of one of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1. ( Id. 20).

The ALJ then assessed Plaintiff's residual functional capacity ["RFC"]. He found that Plaintiff could "lift and carry 20 pounds frequently and 30 pounds occasionally, stand a total of 4 hours in an 8 hour workday, sit a total of 4 hours in an 8 hour workday, with an opportunity to change positions every 60 minutes for a 3-minute position change; can do occasional postural maneuvers; should avoid climbing ladders, ropes, and scaffolds, should void exposure to unprotected heights, should not have any direct exposure in the workplace to alcohol. (AR 21.)

At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (AR 28.) At step five, relying on vocational expert testimony, the ALJ found that there were jobs existing in significant numbers in the national economy that Plaintiff could perform. ( Id. 29.) Thus, the ALJ concluded that Plaintiff was not disabled under the Act at any time through the date of the decision. ( Id. 30).

The Appeals Council denied Plaintiff's request for review of the ALJ's decision (AR 1-8), making the ALJ's decision the Commissioner's final decision. See 20 C.F.R. ยง 422.210(a). Plaintiff timely requested judicial review, and this appeal followed.

Plaintiff argues that the ALJ erred in assessing his credibility, and in rejecting medical evidence because the doctors failed to consider Plaintiff's motive of self-gain when they evaluated his symptoms. Plaintiff also argues that the ALJ erred in preferring the State's consultative opinion over a treating physician's opinion.

II. ANALYSIS

A. Standard of Review

A Court's review of the determination that a claimant is not disabled is limited to determining whether the Commissioner applied the correct legal standard and whether the decision is supported by substantial evidence. Hamilton v. Sec. of Health and Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992). Substantial evidence is evidence a reasonable mind would accept as adequate to support a conclusion. Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990). "It requires more than a scintilla of evidence but less than a preponderance of the evidence." Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).

"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 (10th Cir. 1992). Further, "if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from substantial evidence." Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The ALJ's decision must be evaluated "based solely on the reasons given stated in the decision." Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). A post-hoc rationale is improper because it usurps the agency's function of weighing and balancing the evidence in the first instance. Carpenter v. Astrue, 537 F.3d 1264, ...


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