United States District Court, D. Colorado
SHANE C. YOUNGER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
NINA Y. WANG UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Nina Y. Wang This civil 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 Acting Commissioner of Social Security’s final decision denying the application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) by Plaintiff Shane C. Younger (“Plaintiff” or “Mr. Younger”). Pursuant to the Order of Reference dated September 11, 2015 [#42], this civil action was referred to the Magistrate Judge for a decision on the merits pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and D.C.COLO.LCivR 72.2. [#42]. The court has carefully considered the Amended Complaint filed October 11, 2013 [#10], Defendant’s Answer filed January 21, 2014 [#24], Plaintiff’s Opening Brief filed July 13, 2015 [#37], Defendant’s Response Brief filed August 24, 2015 [#40], the entire case file, the administrative record, and applicable case law. For the following reasons, I respectfully AFFIRM IN PART, and REVERSE AND REMAND IN PART the Commissioner’s decision.
I. Procedural History before the Court
Mr. Younger initiated this action pro se on June 26, 2013, by filing a Complaint against “SSDI, SSB, ” to “appeal social security decision.” [#1]. Plaintiff also filed a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, which was granted on July 2, 2013 along with an order that Plaintiff file an amended complaint. [#3, #4]. On August 14, 2013, the court issued a second order directing Plaintiff to file an amended complaint. [#6]. Plaintiff moved for the appointment of counsel, which the court denied, see [#8, #9] and filed an Amended Complaint on October 11, 2013. [#10].
On October 29, 2013, Plaintiff indicated his consent to the exercise of jurisdiction by a United States Magistrate Judge [#18], and again moved the court for appointment of counsel. [#19]. The court denied the motion on October 30, 2013. [#20]. On January 21, 2014, Defendant Carolyn W. Colvin, Acting Commissioner of Social Security, filed an Answer [#24] and the Social Security Administrative Record [#25].
On April 10, 2014, the court issued an Order to Show Cause “why this action and Complaint should not be dismissed for failure to prosecute, ” considering that Plaintiff had failed to file his Opening Brief by the deadline of March 26, 2014. [#28]. Plaintiff did not respond to the Order to Show cause within the prescribed time and the court dismissed the action without prejudice on April 29, 2014. See [#30].
On May 2, 2014, Plaintiff moved to reopen the case. See [#31]. In an Order dated February 10, 2015, the court granted the motion, reopened the case, and appointed local counsel pursuant to the Court’s Civil Pro Bono Pilot Project to represent Plaintiff. [#32]. Attorney Gregory Stross was selected to represent Plaintiff, see [#33]; Mr. Stross entered his appearance on behalf of Plaintiff on April 27, 2015. [#34]. Plaintiff filed an Opening Brief on July 13, 2015 [#37] and Defendant filed a Response Brief on August 24, 2015 [#40]. Plaintiff did not file a Reply Brief. The Parties consented to the exercise of jurisdiction of a magistrate judge on September 4, 2015. [#41].
II. Events Underlying the Appeal
On February 10, 2010, Mr. Younger filed an application for DIB under Title II of the Act. See [#25-2 at 33]. On April 22, 2010, Mr. Younger filed an application for SSI under Title XVI of the Act. [Id.] Mr. Younger has a high school education, as well as one year of college and four years of electrician apprenticing. He previously worked as a journeyman electrician. [#25-2 at 55]. He alleged in the application that he became disabled on September 15, 2009 as a result of chronic pancreatitis, diabetes, back problems, gout, hypertension, depression, and anxiety. [#25-5 at 2, 6; #25-6 at 11; #25-2 at 55]. Administrative Law Judge Paul Conaway (“ALJ”) denied Mr. Younger’s application after an administrative hearing held December 16, 2011, at which Plaintiff was represented by counsel. [#25-2 at 33-46].
At the administrative hearing, Plaintiff testified that he had not worked since the alleged date of disability. He testified that he suffers from pancreatitis, has a history of regular consumption of alcohol, and has continued to consume alcohol despite his physicians advising him not to drink, explaining that “[t]he pain becomes so bad that I-in the past, that I just forgot about what I was doing and I drank…I don’t think right.” See [#25-2 at 56-59]. Plaintiff testified that he experiences problems related to pancreatitis “[e]very day, all day, all the time.” [Id. at 63]. He feels pain in the upper left to the middle side of his stomach through to his back. [Id.] To control the pain, he takes up to 600mg of extended release Morphine daily, although he testified that even with the pain medication he experiences pain in the pancreas. [Id. at 64]. Plaintiff testified that with the pain, “it’s hard to do anything but lay and rest, ” he has pain in “bending over, tying my shoes, taking a shower, to grab the soap, to dry off, to walk, ” and that he avoids working and playing sports, even while on Morphine. [Id. at 64-65]. He testified that breathing deeply causes him pain and he can walk only the distance of a block and back without stopping to rest. [Id. at 65]. He can sit for one hour in the same position before having to lie down and he can stand for “maybe an hour.” [Id. at 66].
Plaintiff further testified that he has diabetes, which he treats somewhat unsuccessfully with four different types of medicine. [Id. at 60]. He loses consciousness weekly due to the diabetes. [Id.] Plaintiff testified that he struggles with gout, suffers bouts approximately twice a month, and is affected in his elbows, toes, ankles, knees, fingers, and shoulders. [Id. at 61-62]. Plaintiff was experiencing an incidence of gout in his left hand at the time of the administrative hearing. [Id. at 61]. He testified that gout prevents the use of whatever joint is afflicted, and “it feels like shards of glass that have been broken and are trying to come out through my skin.” [Id. at 62]. He cannot pick up containers or write when he experiences gout in his hands and elbows. [Id. at 63]. He spends a couple of days recovering from bouts of gout. [Id.]
Plaintiff further testified that even when he is not experiencing a flare of pancreatitis or bouts of gout, he is compelled to lie down during the day more than he stands or sits, and he cannot lift more than approximately eight pounds. [#25-2 at 67]. He testified to enduring back pain and shooting pains down the front and back of his legs that abate when he sits. [Id. at 69]. Plaintiff struggles with short-term memory problems as a result of the Morphine he ingests, and testified that he cannot remember movies within days of watching them. [Id. at 70]. Morphine also makes him sleepy and causes him to want “to lay down a lot because I’m tired all the time and have no energy.” [Id. at 71]. Finally, Plaintiff testified that he suffers from depression as a result of a divorce and that he struggles to think “of other things, ” and he has low energy. [Id. at 72, 74].
Pat W. Paulini testified as a vocational expert (“VE”). The ALJ explained to Plaintiff’s counsel that “I will not ask a question as to the limitations your client testified to because, clearly, if I accept them, he can’t do any job full-time...he’s laying down the majority of the day, and with the gout and the pancreatitis flares, would miss several days a month at least.” [#25-2 at 76]. The ALJ then advised that he would ask questions “based on other information we have in the file.” [Id.] He questioned whether jobs exist in the United States or local economies that the following hypothetical individual could perform: the age of Plaintiff with Plaintiff’s education and work experience, who is limited to lifting or carrying occasionally 20 pounds, frequently 10; who can sit, stand, or walk six out of eight hours a day; who can push or pull without limitation other than the 20 and 10 pound weight limitations; who can climb ramps and stairs but never ladders, ropes, or scaffolds; who can occasionally balance and can frequently stoop, kneel, crouch, and crawl; who should avoid even moderate exposure to hazards; who can follow simple instructions, sustain ordinary routines, and make simple, work-related decisions; who cannot work closely with supervisors, but can accept supervision if the contact is not frequent or prolonged; and who should work primarily “with things rather than interacting with people.” [#25-2 at 76-77]. The VE testified that such a person could serve as a cleaner, housekeeper, or laundry worker. [#77].
The ALJ issued his written decision on January 11, 2012, concluding that Mr. Younger was disabled, “but that a substance use disorder is a contributing factor material to the determination of disability, ” and thus Plaintiff has not been disabled within the meaning of the Act “at any time from the alleged onset date through the date of [the ALJ’s] decision.” [#25-2 at 33-34]. Plaintiff subsequently submitted new evidence in the form of hospital reports from the University of Colorado Hospital and Longmont United Hospital, a list of medications and hospital admissions, a letter from his mother, and reports from Robert Drickey, M.D., along with a request for review of the ALJ’s decision. [#25-2 at 7-29]. The Appeals Council determined that the new evidence pertained to a time following the period considered by the ALJ and would not affect the decision about whether Plaintiff was disabled beginning on or before January 11, 2012, and denied Plaintiff’s request on May 7, 2013. [#25-2 at 2-5). The decision of the ALJ then became the final decision of the Commissioner. 20 C.F.R. § 404.981; Nielson v. Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993) (citation omitted). Plaintiff filed this action on June 26, 2013. This court has jurisdiction to review the final decision of the Commissioner. 42 U.S.C. § 405(g).
STANDARD OF REVIEW
In reviewing the Commissioner's final decision, the court is limited to determining whether the decision adheres to applicable legal standards and is supported by substantial evidence in the record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation omitted); Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007). The court may not reverse an ALJ simply because she may have reached a different result based on the record; the question instead is whether there is substantial evidence showing that the ALJ was justified in her decision. 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 omitted). Moreover, the court “may neither reweigh the evidence nor substitute [its] judgment for that of the agency.” White v. Massanari, 271 F.3d 1256, 1260 (10th Cir. 2001), as amended on denial of reh'g (April 5, 2002). See also Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (“The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.”) (internal quotation marks and citation omitted). However, “[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 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).
A. Mr. Younger’s Challenge to ALJ’s Decision
An individual is eligible for DIB benefits under the Act if he is insured, has not attained retirement age, has filed an application for DIB, and is under a disability as defined in the Act. 42 U.S.C. § 423(a)(1). Supplemental Security Income is available to an individual who is financially eligible, files an application for SSI, and is disabled as defined in the Act. 42 U.S.C. § 1382. An individual is determined to be under a disability only if his “physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy….” 42 U.S.C. § 423(d)(2)(A). The disabling impairment must last, or be expected to last, for at least 12 consecutive months. See Barnhart v. Walton, 535 U.S. 212, 214-15 (2002). Additionally, the claimant must prove he was disabled prior to his date last insured. Flaherty, 515 F.3d at 1069.
The Commissioner has developed a five-step evaluation process for determining whether a claimant is disabled under the Act. 20 C.F.R. § 404.1520(a)(4)(v). See also 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.” Williams, 844 F.2d at 750. Step one determines whether the claimant is engaged in substantial gainful activity; if so, disability benefits are denied. Id. Step two considers “whether the claimant has a medically severe impairment or combination of impairments, ” as governed by the Secretary’s severity regulations. Id.; see also 20 C.F.R. § 404.1520(e). If the claimant is unable to show that his impairments would have more than a minimal effect on his ability to do basic work activities, he is not eligible for disability benefits. If, however, the claimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three. Williams, 844 F.2d at 750. Step three “determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity, ” pursuant to 20 C.F.R. § 404.1520(d). Id. At step four of the evaluation process, the ALJ must determine a claimant's Residual Functional Capacity (“RFC”), which defines what the claimant is still “functionally capable of doing on a regular and continuing basis, despite his impairments: the claimant's maximum sustained work capability.” Williams, 844 F.2d at 751. The ALJ compares the RFC to the claimant’s past relevant work to determine whether the claimant can resume such work. See Barnes v. Colvin, No. 14-1341, 2015 WL 3775669, at *2 (10th Cir. June 18, 2015) (internal quotation marks omitted) (citing Winfrey v. Chater, 92 F.3d 1017, 1023 ...