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Velez v. Colvin

United States District Court, D. Colorado

March 11, 2016




This action comes before the court pursuant to Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-33 for review of the Commissioner of Social Security’s (“Commissioner” or “Secretary”) final decision denying Plaintiff, Gabriel Marrero Velez’s, application for Disability Insurance Benefits (“DIB”). Pursuant to the Order of Reference dated July 9, 2015 [#17], 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). The court has carefully considered the Complaint filed October 31, 2014 [#1], Defendant’s Answer filed January 6, 2015 [#7], Plaintiff’s Opening Brief filed March 9, 2015 [#11], Defendant’s Response Brief filed April 7, 2015 [#12], Plaintiff’s Reply Brief filed April 23, 2015 [#13], the entire case file, the administrative record, and applicable case law. For the following reasons, I respectfully REVERSE AND REMAND the Commissioner’s decision.


On September 8, 2012, Mr. Velez filed an application for DIB under Title II of the Act. See [#15-5 at 207-209; #15-2 at 48].[2] Plaintiff alleges he became disabled on September 19, 2011, at the age of 54, following an injury that occurred at his job when he was loading and unloading asphalt from a truck. [#8-2 at 46, #8-5 at 145, #8-7 at 258]. His claim was initially denied on April 11, 2013, and he filed a written request for a hearing on April 24, 2013. [#8-3 at 74-84, #8-2 at 28]. On February 26, 2014, Plaintiff and his counsel appeared for a hearing before Administrative Law Judge Patricia E. Hartman (“ALJ”).

At the hearing, Plaintiff testified that he had last worked at an auto shop as a lot attender. In that position, he detailed cars, was involved in maintenance work, and helped keep the yard clean. [#8-2 at 48-49]. The maximum amount of weight he lifted as a lot attender was approximately sixty pounds. [Id. at 49]. Prior to that job, he worked at Sprouts grocery store in maintenance, and lifted at most approximately fifty pounds. [Id.] Prior to working at Sprouts, Plaintiff was an assembly technician at Aqua-Hot Heating and helped assemble water heating tanks. He would lift up to eighty pounds in that position. [Id. at 50]. Plaintiff’s employment history also included a stocker at Walmart, a dish washer at Arkansas Valley Regional Medical Center, and a laborer. [Id. at 50-51]. Plaintiff has a seventh-grade education and he testified that he is not able to read. He did not recall ever taking Special Education classes. [Id. at 48].

Plaintiff testified that he was in significant pain resulting from back issues and that he suffered from depression in large part from the inability to work. [#8-2 at 52]. He had relied on shots and painkillers, which he stated helped with the pain for a few months. At the time of the hearing, he was taking Gabapentin and Vicodin daily for his pain, and using a cane. [Id. at 52-54]. Plaintiff was also taking medication for his depression, which he said helped, and seeing a psychiatrist monthly, although he testified to having suicidal thoughts. [Id. at 55, 64]. Plaintiff explained that he felt pain in the middle of his back and through his tailbone that affected the right side of his body and his right leg. [Id. at 61]. He stated that he felt this pain constantly. [Id.] He also experienced constant pain in his right shoulder and right hand, which he described as locking, “like all my joints from my elbows and my shoulders, they lock up.” [Id. at 64]. The pain worsened when he was “up and moving around, ” he would then “have to be still, sit down and…I can’t do no lifting.” [Id. at 55]. He was able to sit for forty-five minutes to an hour, stand for approximately two hours, walk for approximately forty-five minutes, and lift between five and ten pounds. [Id. at 55-56]. He stated that his medication helped his pain.

Mr. Velez further testified that he struggles with memory loss, concentration, and decision-making, and incurs panic attacks “[m]ostly all the time.” [Id. at 56]. During a typical day, Plaintiff will “relax a lot…go to sleep…be in bed most of the time off and on, ” and he has difficulty sleeping at night. [Id. at 56-57]. Mr. Velez testified that he does not fix meals, load laundry, remove the trash, or pay bills; however he is able to appropriately groom himself, he helps wash dishes “[o]nce in awhile [sic], ” and he vacuums daily. [Id. at 57]. Once or twice a month he visits the grocery store with his wife. Plaintiff has not attended church since his injury, does not visit other people, and does not go to see movies or eat out. [Id. at 58]. Also since his injury he has stopped fishing and playing the guitar. [Id.] He leaves the house for a walk about once a month and enjoys watching television. [Id. at 58, 64].

Finally, Robert Schmidt testified as a vocational expert (“VE”). The ALJ first questioned whether a person with the following restrictions could perform any of Mr. Velez’s previous jobs: one who is restricted to medium work, who can frequently reach overhead, occasionally climb ramps and stairs, cannot climb ladders and scaffolds, can occasionally stoop, kneel, crouch, and crawl, cannot work at unprotected heights, cannot use vibrating tools, and who would be limited to a maximum specific vocational preparation (“SVP”) of 4.[3] [#8-2 at 67-68]. The VE testified that such person could work as a lot attendant, auto detailer, assembler, and kitchen helper. [#8-2 at 68]. The ALJ then asked if the hypothetical individual could perform these jobs if he could not read English, and the VE responded he could. [#8-2 at 68]. The VE further testified that occupations of housekeeping/cleaner and hand packager were likewise available to a person with these limitations. [Id.] The ALJ posed a second hypothetical question in which the individual was similarly restricted and could perform only light work. The VE testified that such a person could work as an assembler, a housekeeping/cleaner, a fast food employee, and a price marker. [#8-2 at 68-69]. In response to questions posed by Plaintiff’s attorney, the VE testified that the same hypothetical individual who was additionally restricted to only occasional use of his right, dominant hand, would not be able to perform any of the jobs previously identified. [#8-2 at 69-70]. And, all previously mentioned jobs would be eliminated if the individual in the second hypothetical was limited to standing only one hour at a time and walking only one hour at a time “for a total of two to three hours either standing or walking during the day.” [#8-2 at 70].

The ALJ denied Mr. Velez’s application in a written decision issued March 31, 2014, concluding that Mr. Velez was not disabled. [#8-2 at 25-37]. Plaintiff requested review of the ALJ’s decision, which the Appeals Council denied on August 28, 2014. [#8-2 at 1]. 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 October 31, 2014. The court has jurisdiction to review the final decision of the Commissioner. 42 U.S.C. § 405(g).


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).


I. The 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). 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 ...

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