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Razo v. Colvin

United States District Court, D. Colorado

November 3, 2015

ANDREW RAZO, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



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 (“the Commissioner”) final decision denying the application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) filed by Plaintiff Andrew Razo (“Plaintiff” or “Razo”). Pursuant to the Order of Reference dated April 7, 2015, 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). [#25]. The court has carefully considered the Complaint filed on April 2, 2014 [#1], Defendant’s Answer filed on September 15, 2014 [#9], Plaintiff’s Opening Brief filed on December 29, 2014 [#16], Defendant’s Response Brief filed on February 27, 2015 [#19], the entire case file, the administrative record, [1] and applicable case law. For the following reasons, the decision is AFFIRMED.


To provide context for the background of the case, the court will first address the standard of review. A five-step evaluation process governs 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. In order, the Administrative Law Judge’s (“ALJ”) analysis proceeds as follows:

1. The ALJ must first ascertain whether the claimant is engaged in substantial gainful activity. A claimant who is working is not disabled regardless of the medical findings.
2. The ALJ must then determine whether the claimed impairment (which can be a combination of medical conditions) is “severe.” A “severe impairment” must significantly limit the claimant’s physical or mental ability to do basic work activities.
3. The ALJ must then determine if the impairment meets or equals in severity certain impairments described in Appendix 1 of the regulations. If the ALJ determines that the impairment meets or equals in severity, then the analysis concludes and the claimant is determined to be disabled.
4. If the claimant’s impairment does not meet or equal a listed impairment, the ALJ must determine whether the claimant can perform his past work despite any limitations. In order to perform the analysis under step 4, the ALJ must first determine a claimant’s residual function capacity, defined as her ability to do physical or mental work on a sustained basis, despite her impairments. The assessment of residual function capacity must take into account all impairments, even if a particular impairment is not considered severe.
5. If the claimant does not have the residual functional capacity to perform her past work, the ALJ must decide whether the claimant can perform any other gainful and substantial work in the economy. This determination is made on the basis of the claimant's age, education, work experience, and residual function capacity.

20 C.F.R. § 404.1520(b)-(f). “The claimant bears the burden of proof through step 4 of the analysis.” Neilson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993). At step 5, 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 “residual functional capacity, age, education, and work experience.” Neilson, 992 F.2d at 1120.

In reviewing the Commissioner's final decision, the court is limited to determining whether the ALJ applied the appropriate legal standards and supported his or her findings with 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 she may have reached a different result, as the issue on appeal is whether the ALJ’s findings were supported by substantial evidence in the record. 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 and quotation 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 and quotation 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).


I. Procedural History

Mr. Razo originally applied for Disability Insurance Benefits (“DIB”) under Title II and Supplemental Security Income (“SSI”) under Title XVI of the Act in December of 2007, alleging a disability onset date of August 31, 2005. [#10-7 at 542-555]. On April 4, 2008, the Social Security Administration initially denied Plaintiff’s application. [#10-4 at 272-273].

On June 5, 2008, Mr. Razo filed a written request for a hearing. [#10-5 at 340]. On October 22, 2009, a hearing was held before Administrative Law Judge Jon L. Lawritson (ALJ). [#10-3 at 264-271]. At that hearing, Mr. Razo requested that a closed period of disability running from August 31, 2005 to July 20, 2009 be considered, as Mr. Razo then stipulated to medical improvement subsequent to July 20, 2009. [Id. at 266]. Because Mr. Razo planned to submit a narrative report from his hand surgeon on the day of the hearing that the state agency physician had not yet had an opportunity to review, the ALJ adjourned the hearing and “postpone[d]” the case. [Id. at 269]. On May 4, 2010, an additional hearing was held. [Id. at 230-265]. Mr. Razo testified at the hearing, as did the Social Security Administration’s Vocational Expert (“VE”) Martin Rohrer. [Id.]. On June 22, 2010, the ALJ issued an unfavorable decision, finding that Mr. Razo was not disabled from the alleged onset date through the date of decision. [10-4 at 274-299].

Plaintiff subsequently requested that the Social Security Administration’s Appeals Council review the ALJ’s June 22, 2010 decision. [#10-4 at 328-330]. On September 1, 2011, the Appeals Council vacated the ALJ’s June 22, 2010 decision, and upon remand, directed the ALJ to, inter alia, consider the “indications of anxiety, opioid dependence, bilateral knee impairments and bilateral neuropathies” in the record (which included new materials submitted at the Appeals Council level). [Id.]. The ALJ was also directed to “[o]btain evidence from a medical expert to clarify the nature and severity of claimant’s impairments.” [Id. at 329].

On February 16, 2012, a hearing was held on remand. [#10-3 at 195-197]. Mr. Razo testified, as did independent medical experts Alexander Rack, M.D. and Margaret Moore, Psy.D. Dr. Rack testified about Plaintiff’s potential physical impairments and limitations, and Dr. Moore testified about Plaintiff’s potential mental impairments. [Id. at 195-229]. Because the ALJ determined that further medical expert testimony as to Mr. Razo’s physical condition, impairments, and limitations was warranted, the ALJ adjourned the hearing. [Id. at 227-28].

On July 24, 2012, Harold Greenberg, M.D. provided additional medical expert testimony concerning Plaintiff’s physical impairments and limitations. [#13 at 1588-1626]. The hearing was adjourned again, with additional testimony from Mr. Razo and another VE contemplated. [Id. at 1624-25]. On October 19, 2012, an additional hearing was held. [#10-3 at 156-94]. Mr. Razo testified, as did VE Deborah Christianson. [Id.]. On November 9, 2012, the ALJ again issued an unfavorable decision, finding that Plaintiff was not disabled from the claimed onset date of August 31, 2005 to the date of decision.[2] [#10-2 at 102-138].

Mr. Razo appealed. [#10-2 at 1-5]. The Appeals Council then denied the Mr. Razo’s request for review. [Id.]. The ALJ's decision is final for purposes of this court’s review. 20 C.F.R. § 404.981.

II. Plaintiff’s Contentions of Error

Mr. Razo raises the following contentions of errors for review: (1) the ALJ failed to apply the treating physician rule to the opinions of his hand surgeon, Mitchell Fremling M.D., with respect to Plaintiff’s upper extremity impairments; (2) the ALJ failed to properly consider and making findings of fact as to purported non-exertional limitations-i.e., according to Plaintiff, Mr. Razo’s pain, need to take time off work, and obesity-in determining Mr. Razo’s RFC; (3) the ALJ failed to assign any limitations with respect to Mr. Razo’s social functioning in the ALJ’s RFC determination; and (4) the ALJ erred at Step 5 in finding that there are jobs existing in substantial numbers in the national economy that Plaintiff could perform notwithstanding his functional limitations. Mr. Razo acknowledges that an unfocused review medical records related to his assorted symptoms would be “unwieldy, ” and therefore, focuses his arguments on his alleged upper extremity and mental impairments. [#16 at 12, 13-17]. Therefore, the court focuses its discussion on those impairments in this Opinion and Order, as they are at the core of Plaintiff’s appeal, though it also addresses Mr. Razo’s contentions of error related to his asserted non-exertional limitations.

II. The ALJ’s Decision and Plaintiff’s Core Contentions of Error

As noted above, the Social Security Administration utilizes a five-step sequential evaluation process for determining whether an individual is disabled. 20 C.F.R. § 416.920(a). The steps are followed in order, and if it is determined that the claimant is or is not disabled at a step of the evaluation process, the evaluation will not progress to the next step.

A. Plaintiff’s Upper Extremity Impairments

At Step 2, the ALJ found that Mr. Razo’s severe impairments included “bilateral upper extremity neuropathies.” [#10-2 at 108]. At Step 3, the ALJ found that Plaintiff’s upper extremity neuropathies did not, alone or in combination with Plaintiff’s other impairments, equal a listed impairment. [Id. at 108-113]. At Step 4, the ALJ determined that Plaintiff RFC’s would allow Plaintiff to lift and carry up to 10 pounds at least occasionally, and to frequently use his upper extremities for work activities, while noting that Plaintiff should never climb ladders, ropes, or scaffolds. [Id. at 113-114].

Mr. Razo contends that the ALJ erred in failing to give controlling weight to the October 2009 opinion of Dr. Fremling, a physician who treated Mr. Razo’s upper extremity conditions before and after October of 2009, including several months prior by means of decompression surgery. [#16 at 21, 23-27]. In evaluating Mr. Razo’s upper extremity impairments, the ALJ instead gave greater weight to the subsequent and less restrictive opinions of Dr. Graesser, Dr. Rack, and Dr. Greenberg. [#10-2 at 121-24].

B. Plaintiff’s Mental Health Impairments

At Step 2, the ALJ found that Mr. Razo’s claimed anxiety disorder was a severe impairment. [#10-2 at 108]. In determining what functional imitations if any this severe impairment posed to Mr. Razo’s RFC at Step 4, the ALJ gave “significant” weight to the opinions provided by Dr. Moore during the February 16, 2012 hearing. [Id. at 124]. Dr. Moore opined that Mr. Razo had a personality disorder that would impose moderate limitations on Mr. Razo’s ability to interact with supervisors, co-workers, and the general public as an employee. [Id.]. Dr. Moore also opined that Mr. Razo’s social limitations would be most significant when Mr. Razo was confronted regarding potential substance abuse. [Id.]. Because the ALJ determined that Mr. Razo’s opiate dependence was in “full remission” as of at least June of 2011, and because the ALJ ...

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