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Duran v. Colvin

United States District Court, D. Colorado

December 22, 2015

PHILLIP GREGORY DURAN, Plaintiff,
v.
CAROLYN W. COLVIN, Defendant.

MEMORANDUM OPINION AND ORDER

CRAIG B. SHAFFER UNITED STATES 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 Phillip Gregory Duran’s (“Plaintiff”) application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Pursuant to the Order of Reference dated January 8, 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). (See Doc. No. 20). The court has carefully considered the Complaint (filed January 28, 2014) (Doc. No. 1), Defendant’s Answer (filed July 14, 2014) (Doc. No. 9), Plaintiff’s Opening Brief (filed September 15, 2014) (Doc. No. 13), Defendant’s Response Brief (filed November 25, 2014) (Doc. No. 16), the entire case file, the administrative record, and applicable case law. For the following reasons, the court affirms the Commissioner’s decision.

BACKGROUND

In November 2010, Plaintiff filed an application for disability benefits, alleging a disability onset date of March 27, 2009. (See Social Security Administrative Record (hereinafter “AR”) at 314, 321). Plaintiff alleged that his ability to work was limited by a hearing impairment, arthritis, and back problems. See Id. at 361. Plaintiff was born on July 6, 1962, and was 46 years old on the date of his alleged disability onset. Id. at 175, 321. He dropped out of high school in the 12th grade and has worked in a variety of jobs including as a bus cleaner, building maintenance laborer, plating equipment tender, lead fabricator, bindery worker, and machine feeder. Id. at 183-84, 186-193. In addition, Plaintiff was incarcerated for 19 months because he collected unemployment benefits while he was working. Id. at 185. After his initial application was denied, Plaintiff requested a hearing, which was held on May 9, 2012, before an Administrative Law Judge (“ALJ”). See Id. at 178-217, 252-53.

Plaintiff was represented by counsel at the hearing and testified that he suffered from hearing loss, but that his hearing difficulty could be alleviated with the use of hearing aids. Id. at 193-94. He also testified that he suffered from back pain that prevented him from getting out of bed for several days at a time. Id. at 194-95. But when asked to rate his pain on a scale from one to ten, Plaintiff stated that his pain was a five or five and a half. Id. at 195. Plaintiff stated that the most he could lift was five to ten pounds. Id. at 197. Plaintiff also testified that he could walk five miles, but could only stand for 15 to 20 minutes at a time. Id. at 197-98.

A vocational expert (“VE”) also testified at the hearing. Id. at 207-216. The VE testified that Plaintiff’s prior work experience was classified as ranging from “light” to “heavy” by the Dictionary of Occupational Titles exertional guidelines. Id. at 209-10. The ALJ asked the VE to assume hypothetically that an individual of Plaintiff’s age - with the same education and past work experience as Plaintiff - had the following limitations: (1) lift up to 20 pounds occasionally, 10 pounds frequently; (2) sit, stand, and walk for approximately two hours per occasion; (3) pushing and pulling are within the lift/carry limits; (4) occasionally operate foot controls; (5) never climb ladders or scaffolding; (6) should not work with or near open dangerous machinery, at unprotected heights, or where driving is a requirement of the job; (7) occasionally climb ramps or stairs; (8) occasionally stoop, crouch, crawl; and (9) frequently balance and kneel. Id. at 210-11. The ALJ also told the VE to assume that the individual had bilateral hearing loss and, therefore, that occupations where hearing loss would cause a danger to the individual or others should be avoided. Id. at 211. Finally, the ALJ told the VE to assume that face-to-face communication was required, as opposed to the use of a telephone. Id. The VE testified that an individual with those limitations could not perform the work involved in Plaintiff’s previous jobs. Id.

However, the VE 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) routing clerk (1, 100 Colorado; 83, 000 National); (2) office helper (900 Colorado; 90, 000 National); and (3) mailroom clerk (400 Colorado; 40, 000 National). Id. at 211-12. The ALJ then posed a second hypothetical in which he asked the VE to assume that instead of being able to lift and carry 10 pounds occasionally, the individual could lift and carry less than 10 pounds frequently. Id. at 212. The VE testified that, under these conditions, all of the previously identified jobs would be eliminated. Id.

The VE did testify, however, that a person under those conditions could function as a document preparer (200 Colorado; 20, 000 National); an addressing clerk (Colorado 200; National 20, 000); a pneumatic tube operator (Colorado 100; National 10, 000); or a cutter and paster (Colorado 150; National 15, 000). The ALJ then asked the VE to assume that - instead of being able to sit, stand, walk for two hours per occasion - the individual could (1) stand for 20 minutes per occasion, 3 hours per day; (2) walk 30 minutes per occasion, 4 hours per day; and sit 45 minutes per occasion, 4 hours per day. Id. at 213-1. The VE testified that there was no compatible employment within those limitations. Id.

Plaintiff’s counsel then asked the VE to assume that the individual from the first and second hypotheticals could only finger and handle occasionally with the non-dominant hand. Id. at 214-15. The VE testified that under those circumstances, the three previously identified jobs would be eliminated. Id. at 215.

On May 23, 2012, the ALJ issued his decision denying benefits. Id. at 163-77. 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 March 27, 2009. Id. at 168. At step two, the ALJ found that Plaintiff suffered from the following severe impairments: degenerative disk disease and disk herniation of the lumbar spine, hearing loss, and alcohol abuse. Id. At step three, the ALJ found that Plaintiff did not have an impairment that met or medically equaled a listed impairment. Id. at 169.

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 to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that he can lift and carry 20 pounds occasionally and 10 pounds frequently, push and pull within his lifting and carrying limits, sit for 2 hours at a time and for at least 6 hours in an 8 hour day, stand for 2 hours at a time and for at least 6 hours in an 8 hour day, walk for 2 hours at a time for at least 6 hours in an 8 hour day, requires regular breaks, occasionally use the right and left foot for operating foot controls, occasionally climb ramps and stairs, occasionally stoop, crouch and crawl, occasionally perform twisting actions with lifting, where “twisting” is defined as movement of the trunk at the waist level to the right and/or left, frequently balance and kneel, never climb ladders or scaffolds, never work around open machinery, at heights or drive as a job requirement and must avoid concentrated exposure to extreme cold. The claimant has bilateral hearing loss and can tolerate moderate noise not to exceed a level of 3, must avoid occupations where hearing loss would cause a danger either to the claimant or others, and requires face to face communication rather than the use of a telephone to communicate in the workplace.

Id. at 169-70. In fashioning Plaintiff’s RFC, the ALJ discussed much of the medical evidence in Plaintiff’s medical records. The ALJ noted many of Plaintiff’s medical records were inconsistent with his claims regarding the disabling nature of his impairments. Id. at 172-74. In addition, the ALJ credited the opinion of Dr. Frank Wright, a consultative examiner, who examined Plaintiff and provided opinions regarding Plaintiff’s limitations.[2] Id. at 35. Dr. Wright concluded that Plaintiff could sit, stand, walk, squat, and crawl without restriction. Id. at 451. In addition, Dr. Wright concluded that Plaintiff could lift up to 30 pounds, and carry up to 20 pounds. Id. The ALJ reduced Dr. Wright’s functional assessment based upon subsequent medical evidence that was not available to Dr. Wright. Id. The ALJ also found Plaintiff’s statements regarding the intensity, persistence, and limiting effects of his symptoms “not credible” to the extent that they were inconsistent with the RFC. Id. at 172.

At step four, based on the RFC set forth above, the ALJ found that Plaintiff could not perform any past relevant work. Id. at 174-75. 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.” Id. at 175. Specifically, the ALJ found that Plaintiff could work as a routing clerk, an office helper, or a mailroom clerk. Id. at 176. Because there were a significant number of jobs that Plaintiff could perform, the ALJ found that Plaintiff did not meet ...


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