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Dwier v. Colvin

United States District Court, D. Colorado

March 25, 2015

DENNIS J. DWIER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


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"] under Titles II and XVI of the Social Security Act ["the Act"], 42 U.S.C. ยงยง 401-433. For the reasons stated below, this case is reversed and remanded to the Commissioner for further fact finding.


Plaintiff filed a claim for DIB and SSI on January 14, 2008, alleging a disability onset date of August 31, 2000. (Administrative Record ["AR"] 73.) Plaintiff, born on November 20, 1957, was 42 years old on his alleged disability onset date. ( Id. 27.) The initial hearing before the Administrative Law Judge ["ALJ"] resulted in an unfavorable decision dated February 11, 2010. ( Id. 73-83.) Plaintiff appealed to the Appeals Council which remanded the case to the ALJ. ( Id. 88-90.)

The remand hearing before the ALJ resulted in an unfavorable decision dated December 1, 2011 (AR 14-29), at which time the ALJ found that Plaintiff had "changed age category to closely approaching advanced age." ( Id. 27.) In the sequential evaluation process required by law, the ALJ found at step one that Plaintiff met the insured status requirements of the Act through December 31, 2005. ( Id. 19.) He also found that Plaintiff had not engaged in substantial gainful activity since August 31, 2000, the alleged onset date. ( Id. ) At steps two and three, the ALJ found that Plaintiff had several severe impairments, including left knee osteoarthritis, degenerative disc disease, and depressive disorder, not otherwise specified, but that such impairments did not meet or medically equal a per se disabling impairment. ( Id. 20.)

The ALJ then assessed Plaintiff's residual functional capacity ["RFC"], finding that Plaintiff, who has at least a high school education, could "perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)" except that he "is able to engage in occasional bending, squatting or kneeling; is unable to climb ladders or scaffolds; is unable to operate foot or leg controls; and is unable to do complex tasks, meaning the work must have a Specific Vocational Preparation (SVP) of less than or equal to 3 and General Education Development of 1 to 3."[1] (AR 21, 27.)

With the assistance of a vocational expert, the ALJ found with this RFC that Plaintiff could still perform his past relevant work as a pizza deliverer or, alternatively, perform other representative occupations that existed in significant numbers in the national economy. (AR 27-28.) This included the jobs of small product assembler, cashier 2, and counter attendant. ( Id. 28.) The ALJ thus concluded that Plaintiff had failed to establish that he was under a disability, as defined by the Act, between the alleged onset of his disability and the date of the ALJ's decision. ( Id. 29.)

The Appeals Council denied Plaintiff's request for review (AR 1), making the ALJ's decision the final decision of the Commissioner. Plaintiff timely sought review.

Plaintiff argues that the ALJ erred in determining at step four that Plaintiff's past work as a pizza deliverer is past relevant work, as the ALJ previously found that this work did not rise to the level of substantial gainful activity. Further, he argues that the ALJ did not make a proper credibility finding, and that the ALJ's limitation on skill level and GED levels to account for Plaintiff's severe depression was improper. Lastly, Plaintiff asserts that the ALJ erred in (1) improperly rejecting Dr. Randall's restriction to account for Plaintiff's frequent bathroom breaks, (2) giving improper reasons for the weight afforded to the opinions of Drs. Randall and Campbell, and (3) failing to follow the two-step process for assessing treating physician Dr. McNabb's opinion.


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). "[I]f 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). However, the court "must exercise common sense' in reviewing an ALJ's decision and must not insist on technical perfection.'" Jones v. Colvin, 514 F.Appx. 813, 823 (10th Cir. 2013) (quotation omitted).

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). Thus, I will not consider post-hoc arguments of the Commissioner. ...

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