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Hatcher v. Colvin

United States District Court, D. Colorado

March 23, 2016



Nina Y. Wang United States Magistrate Judge

This civil action comes before the court pursuant to Title XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 1381-83(c) for review of the Acting Commissioner of Social Security’s final decision denying Plaintiff Raymond Hatcher’s application for Supplemental Security Income (“SSI”). Pursuant to the Order of Reference dated November 17, 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 [#32]. The court has carefully considered the Amended Complaint filed February 3, 2015 [#8], Defendant’s Answer filed May 21, 2015 [#16], Plaintiff’s Opening Brief filed July 21, 2015 [#23], Defendant’s Response Brief filed August 17, 2015 [#27], Plaintiff’s Reply Brief filed August 20, 2015 [#28], the entire case file, the administrative record, and applicable case law. For the following reasons, I respectfully AFFIRM the Commissioner’s decision.


On March 13, 2012, Plaintiff Raymond Hatcher (“Plaintiff” or “Mr. Hatcher”), filed a Title XVI application with an alleged onset date of August 30, 2011. At the time of the alleged onset date, Mr. Hatcher was 19 years old, had some high school education, and had no past relevant work experience. The application was initially denied on July 9, 2012. [#17-2 at 93].[1]Plaintiff thereafter requested a hearing and appeared with counsel before Administrative Law Judge Stanley R. Hogg (“ALJ”) on August 9, 2013. [#17-2 at 31-57]. The ALJ issued an unfavorable decision as to Plaintiff’s Title XVI claim on August 26, 2013, finding that Mr. Hatcher had not been disabled from the date the application was filed through the date of his decision. [#17-2 at 15-26]. On September 10, 2013, Plaintiff filed a “Request for Review of Hearing Decision, ” which the Appeals Council denied on October 16, 2014. [#17-2 at 10-11, 1-5]. Mr. Hatcher thereafter timely filed this civil action.

At the administrative hearing, Plaintiff testified that he suffers from a seizure disorder and that on August 30, 2011, he had suffered a fall and subsequent head injury as a result of one seizure. [#17-2 at 36, 20]. Following his fall, the frequency of his seizures became highly variable; Plaintiff could finish a week without experiencing a single seizure, or he might experience up to ten. [#17-2 at 37]. He started medication in August 2012 that helped to significantly reduce his seizures. [Id.] Plaintiff further testified that he has problems with focus and concentration. [#17-2 at 38]. In March 2013, Plaintiff began living in a group home, where he receives help remembering when to take his medication and when to refill his prescriptions. [#17-2 at 39-40].

Plaintiff testified that he had seen a psychologist for a period of time and described the issues as including mood swings, “I get overwhelmed…I can do a complete 180 on my personality without intending to. And then I’ll go from being a nice guy to a mean guy, or I’ll just have a panic; not necessarily a panic attack, but I’ll start to worry, and stress out, and overstress myself.” [#17-2 at 41]. Plaintiff represented that he feels this way once a month, “at most.” [Id.] Plaintiff also testified that he enjoys spending time with other people, “because I feel safer when others are around, in case I do have a seizure.” [#17-2 at 38]. He has several friends with whom he spends time. [#17-2 at 42]. Plaintiff testified that he smokes marijuana approximately twice a week, both socially and to alleviate effects of a seizure. [#17-2 at 42-43].

Plaintiff previously worked at a hot dog stand preparing and serving food and left as a result of lay-offs. When asked by his attorney why he would have difficulty keeping a job, Plaintiff responded:

I think, if it was a job and something that I was actually interested in, such as, like, finding a specific job for electronic-related things, or video game-related things, or food-related things, like, working as a waiter in a restaurant, or a cook, or something, then it would keep my interest, to the point where I’d probably be able to work; but I’m not 100 percent sure, because since I cracked my skull, my mind tends to wander a lot easier.

[#17-2 at 43-44].

In response to questioning by the ALJ, Plaintiff testified that he has no problem using his hands; and when he socializes with his friends they “go anywhere, from a restaurant, to a bar, to their apartment, to a library, to a mall. It really depends on how we’re feeling that day and what the-our schedules are looking like for said day.” [#17-2 at 45]. Plaintiff also testified that he is responsible for buying his own groceries. [Id.]

Linda Hatcher, Plaintiff’s mother, also testified at the hearing. She stated that following his accident, Plaintiff was treated for a brain bleed and recovered in the intensive care unit for ten days. He then received occupational, speech, and physical therapy for a traumatic brain injury. [#17-7 at 230]. Plaintiff lived in her home for a few months where she administered his medicine and ensured he was safe. Ms. Hatcher testified that Plaintiff cannot live alone because he could not remember to take certain medication properly and cannot follow complex instructions, “he can’t follow a series of directions, so the-everything has to be really simple and really clear.” [#17-2 at 48-49]. After he moved into the group home, she saw him approximately once a week. [#17-2 at 47]. She supported his move to the group home because she believed the environment would allow him to achieve independence appropriate for his age while offering necessary supervision and assistance with regard to his medicine, attending appointments, keeping his apartment clean, and similar tasks. [#17-2 at 48]. Ms. Hatcher further testified that Plaintiff requires a lot of supervision to complete a task, and since the injury, Plaintiff “can just go from zero to, just, ballistic for no reason, and it’s so uncharacteristic.” [#17-2 at 50].

Deborah Christiansen testified as a vocational expert (“VE”). The ALJ first asked the VE whether jobs were available for an individual who is limited to performing simple, routine tasks with one- and two-step instructions, who could occasionally interact with co-workers, supervisors, and the public, and who could not drive, work around machinery, climb, or perform at heights. [#17-2 at 52]. The VE responded that such an individual could work as a cleaner/housekeeping, a final assembler, or as a lens inserter. [#17-2 at 53]. As a second scenario, the ALJ asked the VE what jobs would be available with the above limitations if the individual could tolerate only minimal interaction with co-workers, supervisors, or the public, i.e., interacting less than one third of the work day. [Id.] The VE responded that the same three jobs would remain available. The ALJ and VE agreed that no job could accommodate zero interaction with supervisors or co-workers. The ALJ posed a third scenario, in which the individual has an IQ of 89, has average perceptual reasoning and memory skills, can accurately solve general problems as well as others of his age, is limited to jobs that require good fingering and fine manipulation, and has very low average processing speed “to the extent he is unable to perform daily tasks that require speed, visual scanning efficiency, automaticity, and perceptual speed.”[2] [#17-2 at 54]. This individual was similarly limited to simple one- and two-step job instructions with occasional interaction with co-workers, supervisors, and the public and the restrictions identified above. The VE testified that such an individual could perform the duties of cleaner/housekeeping. [#17-2 at 55]. The ALJ then asked the VE to return to the first hypothetical, to which he added the requirement that close supervision be available. [Id.] The VE responded that such an individual would not be eligible for competitive employment. [Id.]

The ALJ issued his written decision on August 26, 2013, concluding that Mr. Hatcher had not been disabled for SSI purposes within the meaning of the Act from March 13, 2012, the date the application was filed.[3] [#17-2 at 12]. Plaintiff requested review of the ALJ’s decision [#17-2 at 10], which the Appeals Council denied on October 16, 2014. [#17-2 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 December 16, 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 he 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 his 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 SSI benefits under the Act if he 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. § 1382c(a)(1)(3)(B). The Social Security Disability Insurance Program established by Title II of the Social Security Act, 49 Stat. 622, as amended, 42 U.S.C. § 401 et seq., provides for the payment of disability benefits only to those who have previously contributed to the program and who suffer from a mental or physical disability. See Bowen v. City of New York, 476 U.S. 467, 470, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). By contrast, the Supplemental Security Income Program, established by Title XVI of the Social Security Act, 86 Stat. 1465, as amended, 42 U.S.C. § 1381 et seq., provides for the payment of disability benefits based solely on an individual's indigent status and is therefore a need-based program available to claimants independent of their prior social security contributions. See Bowen, 476 U.S. at 470.

The Commissioner has developed a five-step evaluation process for determining whether a claimant is disabled under the Act. 20 C.F.R. § 416.920(a)(4). 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. § 416.909. 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. § 416.920(a)(4)(iii). 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 (10th ...

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