United States District Court, D. Colorado
R. BROOKE JACKSON, District Judge.
This matter is before the Court on review of the Commissioner's decision denying plaintiff Ray Montoya's application for disability insurance benefits pursuant to Title II of the Social Security Act. Jurisdiction is proper under 42 U.S.C. § 405(g).
STANDARD OF REVIEW
This appeal is based upon the administrative record and briefs submitted by the parties. In reviewing a final decision by the Commissioner, the role of the district court is to examine the record and determine whether it "contains substantial evidence to support the [Commissioner's] decision and whether the [Commissioner] applied the correct legal standards." Rickets v. Apfel, 16 F.Supp.2d 1280, 1287 (D. Colo. 1998). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010) (citations omitted). Evidence is not substantial if it "constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992).
The Court "may neither reweigh the evidence nor substitute [its] judgment for that of the agency." Harper v. Colvin, 528 F.Appx. 887, 890 (10th Cir. 2013) (citations omitted). Thus, although some evidence could support contrary findings, the Court "may not displace the agency's choice between two fairly conflicting views, " even if the Court might "have made a different choice had the matter been before it de novo." Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). However, the Court 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 v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (citations omitted).
Upon review, the district court "shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 45 U.S.C. § 405(g).
Mr. Montoya applied for disability insurance benefits on or around May 11, 2011. He claimed inability to work since his alleged onset date of May 9, 2011 due to bilateral I5 spondylolysis without listhesis, bilateral L5 spondylolysis without listhesis (lower back), right knee degenerative arthritis, and depression. R. 189. Mr. Montoya's date last insured is December 31, 2015. The Commissioner denied Mr. Montoya's application on July 26, 2011. Mr. Montoya then requested a hearing before an administrative law judge (ALJ), and the ALJ conducted hearing on May 16, 2012. On June 19, 2012 ALJ Kathryn D. Burgchardt issued an opinion denying benefits. The Appeals Council denied Mr. Montoya's request for review on April 30, 2013. Thereafter, Mr. Montoya filed a timely appeal with this Court.
Mr. Montoya was let go from his job with Dish network as a satellite installer on May 9, 2011. That same day he presented to the Denver Veterans' Administration (VA) Hospital and underwent a series of medical examinations for back and knee pain. He was diagnosed with bilateral L5 spondylolysis without listhesis (essentially a stress fracture of a vertibra without misalignment) with respect to his back pain and with moderate to significant 3-compartment osteoarthritis with respect to his knee pain. R. 255-56. He was referred for an evaluation and twelve physical therapy sessions to take place between May 12 and August 12, 2011. R. 265. There are no medical records indicating that Mr. Montoya ever utilized this referral or went to physical therapy for purposes of relieving his back and knee pain. He did, however, go to a physical therapist in 2012 to seek a functional assessment evaluation for purposes of his disability claim, which will be discussed more fully below.
On May 9, 2011 Mr. Montoya also underwent a mental health screening during which he indicated that he was not suffering from acute emotional/behavioral difficulties nor did he have a history of either. R. 277. He also stated that he had not been feeling down, depressed, or hopeless in the previous two weeks. Id.
On May 27, 2011 Mr. Montoya filed a claim for individual unemployability with the VA. See R. 224. On or around November 28, 2011 the VA denied his claim, finding that Mr. Montoya was capable of gainful employment. R. 229. In particular, the VA found that although Mr. Montoya could no longer perform his job as a satellite dish installer due to his physical impairments, he was not precluded from all gainful employment. R. 230. The VA medical examiner opined that he was able to perform sedentary work, and the mental health examiner did not conclude that all employment was precluded. Id.
On June 30, 2011 Mr. Montoya met with Ryan Otten, MD, for a consultative examination concerning his disability benefits application. See R. 283. At that time Mr. Montoya complained of back pain, arthritis in the knee, and depression. Id. Dr. Otten diagnosed Mr. Montoya with chronic low back pain with possible radiculopathy, reported history of lumbar spine degenerative disc disease; moderate to severe 3-compartment right knee osteoarthritis; depression; and WHO class III (morbid) obesity. R. 287. He also noted that Mr. Montoya was severely hypertensive that day, which the plaintiff attributed to "white coat syndrome." Id. Dr. Otten completed a functional assessment in which he opined that there were no limitations on the number of hours Mr. Montoya could stand or sit during an 8-hour workday; that he should be limited to walking 3-4 hours in an 8-hour workday; that he could occasionally (less than 4 hours out of an 8-hour workday) perform the activities of bending, squatting, crouching, stooping, and kneeling; that he could lift or carry 20 pounds frequently and 40 pounds occasionally; that he could occasionally push and pull with both upper extremities; and that he should have only rare (less than 2 hours out of an 8-hour workday) exposure to stairs and ladders. Id.
With respect to his depression, it appears that Mr. Montoya had stopped taking his medication because he felt it was not working and at times made him feel worse. See R. 227, 283. As of November 2011 Mr. Montoya was not in therapy, R. 227. In early 2012 he underwent some group and individual therapy sessions, though a very limited amount, see R. 295-304. A mental health examination that took place in or around November 2011 showed that Mr. Montoya's cognitive functioning was normal, his thought process was linear and goal-directed, he did not exhibit inappropriate behavior, ...