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Whalen v. Colvin

United States District Court, D. Colorado

March 23, 2016



Craig B. Shaffer United States Magistrate Judge

Magistrate Judge Shaffer This action comes before the court pursuant to Title XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 1381, et seq., for review of the Commissioner of Social Security’s final decision denying Rodney Lee Whalen’s (“Plaintiff”) application for Supplemental Security Income (“SSI”). Pursuant to the Order of Reference dated November 25, 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. 21). The court has carefully considered the Complaint (filed May 7, 2014) (Doc. 1), Defendant’s Answer (filed August 11, 2014) (Doc. 10), Plaintiff’s Opening Brief (filed September 4, 2014) (Doc. 14), Defendant’s Response Brief (filed November 17, 2014) (Doc. 15), Plaintiff’s Reply (filed November 21, 2014) (Doc. 16), the entire case file, the administrative record, and the applicable law. For the following reasons, the court affirms the Commissioner’s decision.


In November 2011, Plaintiff filed an application for disability benefits, alleging a disability onset date of February 2, 2011. (See Social Security Administrative Record (hereinafter “AR”) at 9, 26, 116-21). Plaintiff alleged that his ability to work was limited by muscular atrophy in his right arm and high blood pressure. See Id. at 150, 157. Plaintiff was born on February 7, 1959, and was 52 years old on the date of his alleged disability onset. Id. at 19, 116. He completed the 12th grade and has previous work experience as a warehouse worker, a construction worker, and a prep cook. Id. at 30, 41, 150-51. After his initial application was denied, Plaintiff requested a hearing, which was held on February 4, 2013, before an Administrative Law Judge (“ALJ”). See Id. at 1-5, 24-50. Plaintiff was represented by counsel at the hearing.

Plaintiff, who is left-handed, testified that he suffered from muscular atrophy in his right arm, and that he could not lift more than five pounds or reach higher than a 90-degree angle with his right arm. Id. at 31-32. He stated that even when he used his right arm, it was with an assist from his left arm. Id. at 36. He further testified that he could reach out and grasp and hold things with his right hand, but that his fingers tingled when he did so. Id. at 32. He also stated that, due to nerve damage, physical therapy treatments were ineffective. Id. at 33. When asked what he did to keep himself busy during the day, Plaintiff testified that he cared for his pet pheasants and performed some household chores such as dusting, vacuuming, and laundry. Id. at 34-35. Plaintiff testified that, during the weekends, he and his roommate would run errands, or spend time at his roommate’s cabin. Id. at 36. Plaintiff also testified that his ability to walk was limited by his arm condition. He explained that his shoulder and fingers would go numb and, therefore, he would need to sit and prop his arm up. Id. at 37. In addition, Plaintiff testified that he had been treated for a reoccurring inguinal hernia, which limited his ability to lift or squat. Id. at 39-40.

A vocational expert (“VE”) also testified at the hearing. Id. at 42-49. 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) can function with the right upper extremity only with an assist from the left; (2) the left upper extremity is limited to light level exertion; (3) no reaching with the right upper extremity beyond 90-degrees out from the body; (4) vocational handling, fingering, and feeling with the right upper extremity; (5) standing, walking, and sitting up to six hours in an eight hour work day; (6) pushing and pulling with the lower extremities up to a light level; (7) no pushing and pulling with the right upper extremity; (8) pushing and pulling with the left upper extremity within the light level; (9) never climb ladders, ropes, or scaffolds; (10) no balancing, squatting, or crawling; and (11) avoid exposure to extreme cold, vibration, and hazards such as unprotected heights and machinery. Id. at 42-43. The ALJ also specified that the job could be performed at a semiskilled level. Id. at 43.

Based on these limitations, the VE testified that all of Plaintiff’s past relevant work would be eliminated. 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) office helper, SVP: 2 (1, 397 Colorado; 89, 460 National); (2) sales attendant at a self-service store, SVP: 2 (3, 420 Colorado; 194, 463 National); and (3) security guard, SVP: 3 (5, 015 Colorado; 330, 564 National). Id. at 43.

When asked whether his testimony was consistent with the Dictionary of Occupational Titles, the VE stated that he had to consider whether these jobs were consistent with the ability to use only one arm. He further testified that, based on his experience and recent validated studies, all three positions would be compatible with an individual who could only use one arm. Id. at 44.

Plaintiff’s counsel then posed a second hypothetical in which she asked the VE to assume that the individual would be restricted to standing and walking up to three hours in a day, could sit for an unlimited amount of time, and could only lift and carry 10 pounds. Id. The VE testified that such a person could only perform at a sedentary level. Id. Plaintiff’s counsel then asked the VE whether employment existed for an individual who would be off task more than 10 percent of the work week due to psychological factors. Id. The VE testified that there likely would be jobs for such an individual. However, he also concluded that being off task 20 percent of the time would be the cut off point for employability. Id. at 45.

The ALJ then asked the VE whether a reduced standing and walking limitation - three hours out of an eight-hour work day - would erode the previously identified light jobs or lower the exertion level to sedentary. Id. at 47. The VE confirmed that light work with a three hour standing limitation would be considered “seated light or sedentary.” Id. at 48. The VE also testified that the office helper and security officer jobs could still be performed; however, the sales attendant job would be eliminated. Id. at 48. The VE further testified that there would be an erosion of fifty percent in the number of office helper and security guard positions. Id. at 48-49.

On March 6, 2013, the ALJ issued his decision denying benefits. Id. at 6-23. 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 November 28, 2011. Id. at 11. At step two, the ALJ found that Plaintiff had the following severe impairments: (1) right arm muscular atrophy; (2) high blood pressure; (3) inguinal hernia; and (4) major depressive disorder. Id. At step three, the ALJ found that Plaintiff did not have an impairment that met or medically equaled a listed impairment. Id. at 11-12.

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) with the following additional limitations:

• Can stand/walk for about 3/8 hours alternating positions as needed during those three hours;
• Can sit for about 6/8 hours;
• Can use the right upper extremity only with assistance from the left upper extremity;
• Can use the left upper extremity to perform light exertional activities;
• No reaching with the right upper extremity beyond 90 degrees out from the body;
• No more than occasional handling, fingering and feeling with the right upper extremity;
• Can push and pull with lower extremities at light exertional level;
• No push and pull with the right upper extremity, but can push and pull at light exertional level ...

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