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Vigil v. Colvin

United States District Court, D. Colorado

September 16, 2014

KENNETH G. VIGIL, Plaintiff,


CRAIG B. SHAFFER, Magistrate Judge.

This action comes before the court pursuant to Titles II and XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 401-33 and 1381-83(c) for review of the Commissioner of Social Security's final decision denying Plaintiff, Kenneth G. Vigil's, application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Pursuant to the Order of Reference dated March 6, 2014, this civil action was referred to the Magistrate Judge "for all purposes" pursuant to the Pilot Program to Implement the Direct Assignment of Civil Cases to Full Time Magistrate Judges and Title 28 U.S.C. § 636(c). ( See Doc. #22). The court has carefully considered the Complaint (filed July 17, 2013) (doc #1), Defendant's Answer (filed October 18, 2013) (doc. #10), Plaintiff's Opening Brief (filed December 2, 2013) (doc. #14), Defendant's Response Brief (filed February 18, 2014) (doc. #17), Plaintiff's Reply Brief (filed March 3, 2014) (doc. 18), the entire case file, the administrative record, and applicable case law. For the following reasons, I affirm the Commissioner's decision.


On June 28, 2010, Kenneth Vigil filed an application for DIB under Title II of the Act and an application for SSI under XVI of the Act. ( See Record (Doc. #11-2) at 11; (Doc. #11-5) at 6 of 17). Mr. Vigil has a Tenth Grade education and has tried without success to obtain his GED. ( See Record (Doc. #11-11) at 47 of 100). His professional work experience consists exclusively of jobs involving manual labor, such as a fiberglass maker, spot welder, brick maker, and hog farmer. ( See Record (Doc. #11-2) at 38 of 41). Plaintiff alleges he became disabled on July 28, 2006 at the age of 42 due to injuries sustained to his left knee and ankle while at work. The claim was denied at the initial determination stage on October 4, 2010, and Plaintiff requested a hearing. ( See Record (Doc. #11-2) at 11). Administrative Law Judge William Musseman ("ALJ") held a hearing on February 28, 2012, at which Plaintiff was represented by counsel and testified that he could not work due to knee and back problems and poor stability, all of which prevent him from standing longer than fifteen minutes or lifting more than twenty pounds. Mr. Vigil further testified that he takes medication and has tried physical therapy but nonetheless struggles with bending, lifting, and squatting. Finally, Plaintiff testified that he suffers from depression and anxiety, is uncomfortable leaving his house, and is easily distracted. Nora W. Dunne testified as a vocational expert ("VE"). The ALJ posed three hypothetical scenarios to the VE. First, he questioned whether jobs exist for a person of Plaintiff's age with Plaintiff's education, who is limited to an exertional level in a full range of light; with only occasional bending, squatting, and kneeling; who cannot use ladders or scaffolds; who can only occasionally use foot or leg controls; who cannot perform complex tasks, defined as specific vocational preparation "svp" 2 or less; and who cannot deal with the general public. ( See Record (Doc. #11-2) at 39 of 41). The VE testified that an individual with those limitations could not perform the work involved in Plaintiff's previous jobs, but that jobs compatible with such limitations exist in the national economy. See id. The VE listed housekeeper, retail marker, and poultry boner as examples. See id. The ALJ posed a second hypothetical in which he changed the requirement of light to that of sedentary and added a sit/stand option. See id. at 40 of 41. In the third hypothetical he added a limitation that the person would be off task at least 75 percent of the normal workday. See id. The VE testified that no jobs exist in the national economy that would be compatible with the limitations described in either hypothetical two or three. See id. The ALJ issued his written decision on March 9, 2012, concluding that Mr. Vigil was not disabled.

Plaintiff requested review of the ALJ's decision, which the Appeals Council denied on May 22, 2013. (Record (Doc. #11-2) at 2). The decision of the ALJ then became the final decision of the Commissioner. 20 C.F.R. § 404.981; Nelson v. Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993) (citation omitted). Plaintiff filed this action on July 17, 2013. The court has jurisdiction to review the final decision of the Commissioner. 42 U.S.C. § 405(g).


In reviewing the Commissioner's final decision, the court is limited to determining whether the decision adheres to applicable legal standards and is supported by substantial evidence in the record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation omitted); Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). The court may not reverse an ALJ simply because he may have reached a different result based on the record; the question instead is whether there is substantial evidence showing that the ALJ was justified in his decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). "Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (internal citation omitted). Moreover, "[e]vidence 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) (internal citation omitted). The court will not "reweigh the evidence or retry the case, " but must "meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Flaherty, 515 F.3d at 1070 (internal citation omitted). Nevertheless, "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) (internal citation omitted).


A. Mr. Vigil's Challenge to ALJ's Decision

An individual is eligible for DIB benefits under the Act if he is insured, has not attained retirement age, has filed an application for DIB, and is under a disability as defined in the Act. 42 U.S.C. §§ 416(i), 423(a)(1). Supplemental Security Income is available to an individual who is financially eligible, files an application for SSI, and is disabled as defined in the Act. 42 U.S.C. § 1382. An individual is determined to be under a disability only if his "physical or mental impairment or impairments are of such severity that [he] is not only unable to do [his] previous work but cannot, considering [his] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy...." 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B).

The Commissioner has developed a five-step evaluation process for determining whether a claimant is disabled under the Act. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (describing the five steps in detail). "If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary." Id. at 750. At step four of the evaluation process, the ALJ must determine a claimant's Residual Functional Capacity (RFC) and compare the RFC to the claimant's past relevant work. The RFC is what a claimant is still "functionally capable of doing on a regular and continuing basis, despite his impairments: the claimant's maximum sustained work capability." Williams, 844 F.2d at 751. "The claimant bears the burden of proof through step four of the analysis." Neilson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993).

At step five, the burden shifts to the Commissioner to show that a claimant can perform work that exists in the national economy, taking into account the claimant's RFC, age, education, and work experience. Neilson, 992 F.2d at 1120.

... A claimant's RFC to do work is what the claimant is still functionally capable of doing on a regular and continuing basis, despite his impairments: the claimant's maximum sustained work capability. The decision maker first determines the type of work, based on physical exertion (strength) requirements, that the claimant has the RFC to perform. In this context, work existing in the economy is classified as sedentary, light, medium, heavy, and very heavy. To determine the claimant's "RFC category, " the decision maker assesses a claimant's physical abilities and, consequently, takes into account the claimant's exertional limitations (i.e., limitations in meeting the strength requirements of work)....
If a conclusion of "not disabled" results, this means that a significant number of jobs exist in the national economy for which the claimant is still exertionally capable of performing. However, ... [t]he decision maker must then consider all relevant facts to determine whether claimant's work capability is ...

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