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Schoengarth v. Colvin

United States District Court, District of Colorado

April 14, 2015

ROBERT L. SCHOENGARTH II, Plaintiff,
v.
CAROLYN W. COLVIN, Defendant.

MEMORANDUM OPINION AND ORDER

Craig B. Shaffer United States Magistrate Judge

Magistrate Judge Shaffer 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 Robert Schoengarth’s (“Plaintiff”) application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Pursuant to the Order of Reference dated July 17, 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. No. 20). The court has carefully considered the Complaint (filed November 1, 2013) (Doc. No. 1), Defendant’s Answer (filed January 22, 2014) (Doc. No. 6), Plaintiff’s Opening Brief (filed April 2, 2014) (Doc. No. 10), Defendant’s Response Brief (filed June 18, 2014) (Doc. No. 13), Plaintiff’s Reply (filed July 7, 2014) (Doc. No. 14), the entire case file, the administrative record, and applicable case law. For the following reasons, the court affirms the Commissioner’s decision.

BACKGROUND

In March 2010, Plaintiff filed an application for disability benefits, alleging a disability onset date of June 1, 2009. (See Social Security Administrative Record (hereinafter “AR”) at 168-72, 173-79). Plaintiff alleges he became disabled due to chronic pain syndrome, major depressive disorder, arthritis, chronic pancreatitis, and anxiety. (AR at 255). Plaintiff was born on April 23, 1963, and was 46 years old on the date of his alleged disability onset. (AR at 168). He has a high school education and has worked in a variety of jobs including meter reader, meter repair, route driver, retail sales, tire sales, telemarketer, and kitchen/restaurant manager. (AR at 265, 333). After his initial application was denied, Plaintiff requested a hearing, which was held by video on May 18, 2012, before an Administrative Law Judge (“ALJ”). (See AR at 37, 92-93).

Plaintiff was represented by counsel at the hearing and testified that he had pain in his lower and middle back, as well as in his left shoulder through his left hand. (AR at 43-44). He further testified that his back pain was constant and that it would get worse with cold weather, making it difficult to walk. (AR at 44). He stated that his pain made it difficult to go grocery shopping, and that by the time he finished shopping he would need to lay down for three to four hours. (AR at 44-45). Plaintiff stated that he could walk for 15 minutes at a time, stand for five to ten minutes, and sit for five to ten minutes. (AR at 46-47). He estimated that he would spend, on average, six hours laying down every day. (AR at 48). Plaintiff also reported that on four or five occasions per month, he would stay in bed for the entire day. (AR at 48). Plaintiff said he was depressed due to the pain and his inability to do the things he used to do. (AR at 49). He said that when he was depressed, he did not like being around other people. (AR at 49).

At the hearing, Susan L. Creighton-Clavel testified by telephone as an impartial vocational expert (“VE”). The ALJ asked the VE to assume hypothetically that a person of Plaintiff’s age, education, and work experience had the following limitations: (1) able to do light work; (2) never use ladders, ropes, or scaffolds; (3) occasionally climb ramps or stairs; (4) occasionally stoop, crouch, kneel, and crawl; (5) frequently reach overhead with his left arm and hand; (6) frequently handle objects as gross manipulation with his left arm and hand; (7) frequently finger objects as fine manipulation with his left arm and hand; (8) must avoid extreme cold; (9) must avoid all use of hazardous machinery; (10) must avoid all exposure to unprotected heights; (11) limited to simple, routine and repetitive tasks, with only occasional changes in the work setting; and (12) cannot have strict production quotas. (AR at 58). The VE testified that an individual with those limitations could work in a pizza delivery position; however, he could not perform work involved in any of Plaintiff’s other previous jobs. (AR at 59-60).

The VE then identified three other “light” exertional jobs that someone with those limitations could perform and testified about the number of each position in the regional and national economy: (1) information clerk (1, 600 Colorado; 83, 000 National); (2) usher (1, 800 Colorado; 83, 000 National); and (3) office helper (1, 800 Colorado; 112, 000 National). (AR at 59-60). The ALJ then posed a second hypothetical in which he asked the VE to assume that the same individual would be sedentary. (AR at 60). The VE testified that the information clerk and the officer helper, although categorized as “light” exertion, could be performed while sitting down. (AR at 60). The VE also testified that, under those conditions, the individual would be able to perform work as a (1) telephone clerk (1, 800 Colorado; 83, 000 National); (2) table worker (150 Colorado; 13, 000 National); and (3) charge account clerk (650 Colorado; 32, 000 National).

The ALJ then asked the VE to assume that the individual would - in addition to regularly scheduled breaks - need two or more unexcused breaks to lay down for 15 minutes. (AR at 61). The VE testified that, under such a limitation, all work would be precluded. The VE also testified that all competitive employment would be precluded if the individual required two or more unexcused or unscheduled absences per month. (AR at 61).

Plaintiff’s counsel then asked the VE to assume that - instead of being able to handle and finger frequently - the individual from the ALJ’s hypothetical could only handle and finger occasionally. (AR at 61-62). The VE concluded that all of the previously identified “sedentary” jobs, as well as the information clerk and the officer helper, would be eliminated. (AR at 62).

On June 27, 2012, the ALJ issued his decision denying benefits. (AR at 11-36). The ALJ’s opinion followed the five-step process outlined in the Social Security regulations.[1] At step one, the ALJ found that Plaintiff had not engaged in substantial gainful employment since June 1, 2009. (AR at 16). At step two, the ALJ found that Plaintiff suffered from the following severe impairments: pancreatitis; arthritis; disorder of the back; and depression. (AR at 16). At step three, the ALJ found that Plaintiff did not have an impairment that met or medically equaled a listed impairment. (AR at 16-17).

The ALJ then assessed the following residual functional capacity (“RFC”):

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity (RFC) to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can never climb ladders, ropes, or scaffolds; he can occasionally climb ramps and stairs, stoop, crouch, kneel, and crawl; he is limited to frequent overhead reaching with the left upper extremity; he is limited to frequent handling of objects, that is gross manipulations with the left upper extremity; he is limited to frequent fingering of objects, that is fine manipulation of items no smaller than the size of a paper clip, with the left upper extremity; he must avoid extreme cold; he must avoid all use of hazardous machinery and all exposure to unprotected heights; his work is limited to simple, as defined in the DOT as SVP levels 1 and 2, routine and repetitive tasks; he can only have occasional changes in the work setting; and he cannot have strict production quota emphasis on a per shift rather than per hour basis.

(AR at 17-18). In fashioning Plaintiff’s RFC, the ALJ discussed much of the medical evidence in Plaintiff’s medical records. The ALJ found that Plaintiff’s allegations of pain were “inconsistent with the objective medical evidence, ” which indicated an attempt by Plaintiff to “exaggerate the severity of his symptoms.” (AR at 19). The ALJ further found that Plaintiff’s subjective complaints were “disproportionate to the objective medical findings in the record.” (AR at 19). In addition, the ALJ credited the opinion of Dr. Richard Carson, an internal medicine consultative examiner, who examined Plaintiff. (AR at 23). Dr. Carson noted that there was good evidence that Plaintiff was “malingering” with his physical examination (AR at 634). The ALJ also credited the opinion of Dr. Morris Susman, a state agency medical consultant, who reviewed Plaintiff’s medical records and prepared a physical RFC assessment. (AR at 25). Dr. Susman concluded that Plaintiff’s symptoms were not disabling and that Plaintiff had the ability to perform unskilled work with light exertional demands. (AR at 73). The ALJ also found Plaintiff’s statements regarding the intensity, persistence and limiting effects of his symptoms to be “less than fully credible.” (AR at 19).

At step four, based on the RFC set forth above, the ALJ found that Plaintiff could not perform any past relevant work. (AR at 27-28). At step five, the ALJ found: “[c]onsidering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.” (AR at 28). Specifically, the ALJ found that Plaintiff could work as an information clerk, an usher, or an officer helper. (AR at 29). Because there were a significant number of jobs that Plaintiff could perform, the ALJ found that Plaintiff did not meet the definition of “disabled” for purposes of the Social Security Act. (AR at 29). Accordingly, Plaintiff’s application for disability benefits was denied.

Following the ALJ’s decision, Plaintiff requested review of the ALJ’s decision. (AR at 7-10, 341-49). The Appeals Council denied his request for review on September 3, 2013. (AR at 1-5). 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 November 1, 2013. ...


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