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Meredith v. Colvin

United States District Court, D. Colorado

September 9, 2014

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


LEWIS T. BABCOCK, District Judge

Plaintiff, Michael Gene Meredith, appeals from the Social Security Administration Commissioner's (the "Commissioner") final decision denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"), filed pursuant to Titles II and XVI of the Social Security Act (the "Act"), 42 U.S.C. §§ 401-433, 1381-1383c. Jurisdiction is proper under 42 U.S.C. § 405(g). Oral argument will not materially aid in resolving this appeal. After considering the parties' arguments and the administrative record, for the reasons below, I affirm the Commissioner's final order.


Plaintiff initially filed applications for SSI and DIB on November 21, 2009, alleging that he had been disabled since August 27, 2009. [Administrative Record ("AR") Doc. #10-5, 2-5]. These claims were initially denied by an Administrative Law Judge ("ALJ") on August 31, 2009. [ Id. at 10-3, 2-12]. Plaintiff did not request further review of this decision, making this determination final. [ Id. at 10-2, 22]. Plaintiff then filed two additional applications for SSI and DIB on January 22, 2010. [ Id. at 10-5, 3-7]. Because the decision as to Plaintiff's disability through August 31, 2009 was final, review of Plaintiff's second set of applications is limited to whether Plaintiff has been under disability since September 1, 2009. [ Id. at 10-2, 22]. Plaintiff's January 22, 2010 applications were initially denied at the administrative level. [ Id. at 10-3, 16-35].

An ALJ subsequently conducted a hearing on July 13, 2011 ( id. at 10-2, 31-52), and issued a written ruling on October 28, 2011 ( id. at 18-30). The ALJ denied Plaintiff's application on the basis that he was not disabled during the relevant time period because he could perform past relevant work and in the alternative that Plaintiff could perform work in the national economy given his residual functional capacity ("RFC"), age, education, and work experience. [ Id. at 28-30]. Plaintiff appealed the denial of his application to the Social Security Administration Appeals Council ("Appeals Council"). [ Id. at 10-4, 10-11]. On January 25, 2013, the Appeals Council declined to review the decision of the ALJ, making the denial final for the purpose of judicial review. [ Id. at 10-2, 2-6]. In denying review, the Appeals Council informed Plaintiff that it "considered the reasons [Plaintiff] disagree[d] with the decision and the additional evidence listed on the enclosed Order of Appeals Council. [It] found this information does not provide a basis for changing the Administrative Law Judge's decision." [ Id. at 2-3].

Plaintiff timely filed his Complaint with this Court seeking review of the Commissioner's final decision. [Doc. #1].


The facts are largely undisputed and extensively provided in the ALJ's order. As such, I provide a limited factual background as relevant here.

A. Background

Plaintiff was born on July 21, 1979, was 30 years old on his alleged onset date of August 27, 2009, was 30 at the start of the relevant time period, and was 32 at the time of the ALJ's decision. [AR Doc. #10-3, 16]. He has a high school degree and is able to communicate in English. [ Id. at 10-2, 28]. His past relevant work history includes tech support, accounts receivable clerk, computer technical support, scorekeeper, caretaker of facilities, furniture delivery/set up, and trainer/assistant manager for fast food service. [ Id. at 10-2, 47-48]. Pursuant to 20 C.F.R. § 404.130, in order to be eligible for benefits, Plaintiff must prove that his disability began before the date through which he remained insured, which in this case was December 31, 2011. [ Id. at 22]. Thus here, the relevant time period for determining disability is September 1, 2009, through the date of the ALJ's decision, October 28, 2011. [ See id. ]; 20 C.F.R. § 404.130. During the relevant time period Plaintiff was not engaged in substantial gainful activity. [ Id. at 10-2, 24].

B. Medical Evidence

From October 2008 to May 2011, Plaintiff saw Frank Polanco, M.D., at Healthquest Medical Inc. for recurring complaints of severe and constant pain in his neck and low back following a December 2005 motor vehicle accident. [ Id. at 10-7, 11-38]. To help with Plaintiff's reports of pain, Dr. Polanco prescribed Vicodin, Soma, and Ibuprofen. [ Id. at 30]. Plaintiff saw Dr. Polanco on and off approximately once per month and continually reported significant neck and back pain, which he rated within a range of 6 to 9.5 on a scale of 1 to 10. [ Id. at 11-38].

In June 2009, Plaintiff began pain management treatment with Ronald Laub, M.D. at Interventional Pain Management. [ Id. at 2-10]. Dr. Laub reviewed MRI reports, which the doctor noted showed some degenerative disc disease in both the low back and neck, disc bulges in the neck and back, but no narrowing (stenosis) of the spine. [ Id. ] On examination, Plaintiff's low back was not tender to palpation, and his strength, sensation, and reflexes were normal in both the arms and legs. [ Id. at 5]. Dr. Laub noted that Plaintiff had "some high pain behavior, " such as "sighing when changing position, " and had back pain with straight leg raising. [ Id. ]

After examining Plaintiff and reviewing his MRI, Dr. Laub noted that there was a "lack of identifiable sources of pain." [ Id. ] The doctor also administered at Brief Battery for Health Improvement II test, which is "designed to screen for psychological factors that would complicate a patient's condition and to judge a patient's responsiveness to rehabilitation and recovery." Beaulieu v. Astrue, No. 10-81209-CIV, 2011 WL 4542546, at *2 (S.D. Fla. Sep. 12, 2011) (unpublished). Dr. Laub reported that the results demonstrated "high somatic complaints, moderate high pain complaints, extremely high functional complaints, very high depression, and high anxiety." [ Id. ]. Dr. Laub indicated that Plaintiff's behavior could be "secondary to his pain condition or may represent somatoform disorder." [ Id. ]

After applying for benefits, when investigating whether Plaintiff qualified for benefits, the Social Security Administration attempted to send Plaintiff to a psychological consultative examination. [ Id. at 10-3, 29]. The notice was returned undeliverable and Plaintiff never attended a psychological consultative examination. [ Id .; id. at 10-6, 56-70]. Donald Glasco, M.D., then reviewed the record and opined that there was insufficient evidence to evaluate the claim. [ Id. at 10-3, 30].

B. Plaintiff's Disability Hearing

During the ALJ's hearing on July 13, 2011, Plaintiff testified that he lived with his father, his stepmother, his fiance, and his fiance's four-year-old child. [ Id. at 10-2, 35]. He stated that during the day he and his fiance took care of her child while his father and stepmother worked. [ Id. ] He provided that he had a drivers' license and drove a couple of times a week, usually to the store to go grocery shopping. [ Id. at 36]. Plaintiff also worked part time as an at-home customer support representative for X-Box. [ Id. at 36-37]. When he was not working, Plaintiff reported that he watched Netflix (television or movies) or played video games. [ Id. at 41].

Plaintiff testified that his primary problem was chronic pain in his back and neck and claimed that he would periodically have difficulty concentrating due to this pain. [ Id. at 39-40]. He described taking Vicodin, ibuprofen, and soma to help him function. [ Id. ] He reported that in his at-home customer service work he was able to concentrate for four-hour shifts with a ten-minute scheduled break and two or three extra two-minute breaks. [ Id. at 41]. He also stated that he could sit 20 to 30 minutes at a time, but would then need to stand for a couple of minutes and could stand for 30 minutes at a time and walk a block or two. [ Id. at 43]. Plaintiff stated that his pain levels were typically a 7 on a scale of 1 to 10, that he could not bend over or squat, and that without medication he could not focus for more than one hour. [ Id. at 44-46].

A Vocational Expert ("VE") also testified at the ALJ hearing. [ Id. at 46-52]. The ALJ asked the VE if an individual could complete any of Plaintiff's past work with the same age, educational background, and work experience as Plaintiff who was limited to a light exertional level with the following limitations: could sit, stand, and walk six hours per day, but needed to be able to alternate between sitting and standing at will; could not climb ladders, ropes, or scaffolds; he could occasionally climb stair and ramps, stoop, crouch, crawl, kneel, and reach overhead; and he needed to avoid concentrated exposure to cold, vibration, and unprotected heights. [ Id. at 49]. The VE responded that such an individual could still work in accounts receivable, as a scorekeeper, and in computer technical support. [ Id. at 49]. The ALJ then asked the VE if there were other jobs such an individual would be capable of performing. [ Id. ] The VE responded that such an individual could work as a ticket taker, a cashier in a gas bar island, and a cashier at a convenience store. [ Id. at 50]. The ALJ next asked the VE if there was any inconsistency between the provided RFC and the identified jobs, to which the VE responded that there was not. [ Id. ]


To qualify for benefits under sections 216(I) and 223 of the SSA, an individual must meet the insured status requirements of these sections, be under age 65, file an application for DIB and/or SSI for a period of disability, and be "disabled" as defined by the SSA. 42 U.S.C. §§ 416(I), 423, 1382. Additionally, SSI requires that an individual meet income, resource, and other relevant requirements. See 42 U.S.C. § 1382. A Five-Step sequential evaluation process is used to determine whether a claimant is disabled under the SSA, which is generally defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(B); see also Bowen v. Yuckert, 482 U.S. 137, 137 (1987).

Step One asks whether the claimant is presently engaged in substantial gainful activity. If he is, benefits are denied. See 20 C.F.R. § 404.1520. Step Two is a determination of whether the claimant has a medically severe impairment or combination of impairments, as governed by 20 C.F.R. § 404.1520(c). If the claimant is unable to show that his impairment(s) would have more than a minimal effect on his ability to do basic work activities, he is not eligible. See 20 C.F.R. § 404.1520(c). Step Three then assesses whether the impairment is equivalent to one of a number of listed impairments deemed to be so severe as to preclude substantial gainful employment. See 20 C.F.R. § 404.1520(d). If the impairment is not listed, he is not presumed to be conclusively disabled. Step Four then requires the claimant to show that his impairment(s) and assessed RFC prevent him from performing work that he has performed in the past. If the claimant is able to perform his previous work, he is not disabled. See 20 C.F.R. §§ 404.1520(e), (f). Finally, if the claimant establishes a prima facie case of ...

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