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Cobb v. Colvin

United States District Court, D. Colorado

March 30, 2016

CHARLES D. COBB, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



This matter is before the Court on plaintiff Charles D. Cobb’s complaint [Docket No. 1] filed on November 6, 2013. Plaintiff seeks review of the final decision of defendant Carolyn W. Colvin (the “Commissioner”) denying plaintiff’s claim for disability insurance benefits under Title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 401-33 and 1381-83c. The Court has jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 405(g).


A. The ALJ’s Decision

On March 18, 2011, plaintiff applied for disability insurance benefits under Title II of the Act. R. at 169. Plaintiff alleged that he had been disabled beginning June 1, 2007. Id. Plaintiff appeared at a hearing conducted by an Administrative Law Judge (“ALJ”) on April 5, 2012. Id. Plaintiff was represented by a “non-attorney representative” at the hearing.[1] Id. at 169. On May 18, 2012, the ALJ denied plaintiff’s claim. Id. at 175. The ALJ found that plaintiff had the severe impairments of status post right foot surgery and lumbar spine spondylosis. Id. at 171. The ALJ found that these impairments, alone or in combination, did not meet or medically equal one of the regulations’ listed impairments, id. at 171-72, and found that plaintiff had the residual functional capacity (“RFC”) to “perform light work as defined in 20 C.F.R. § 404.1567(b) except that the work must be unskilled.” Id. at 172. Based upon this RFC and in reliance on the testimony of a vocational expert (“VE”), the ALJ concluded that, “[t]hrough the date[] last insured, . . . there were jobs that existed in significant numbers in the national economy that [plaintiff] could have performed.” Id. at 174.

B. Procedural History

The Appeals Council denied plaintiff’s request for review of the ALJ’s denial on August 30, 2013. R. at 6, 13. Consequently, the ALJ’s decision is the final decision of the Commissioner. Pursuant to 20 C.F.R. § 422.210(c), plaintiff is presumed to have received notice of the Appeals Council’s denial on September 4, 2013, five days after the denial was issued. Consequently, plaintiff’s deadline to initiate this appeal was November 4, 2013, sixty days after plaintiff’s receipt of notice. See 42 U.S.C. § 405(g).[2]Plaintiff did not file his complaint until November 6, 2013, two days after his deadline to do so. Docket No. 1. The same day that plaintiff filed his complaint, plaintiff’s counsel asked the Commissioner for an extension to file the appeal. R. at 3. On January 31, 2014, the Commissioner moved to dismiss plaintiff’s appeal as untimely. Docket No. 8. Plaintiff did not respond to the Commissioner’s motion. On March 12, 2014, Senior District Judge John L. Kane granted the Commissioner’s motion to dismiss, Docket No. 9, and judgment entered in favor of the Commissioner. Docket No. 10.

On March 14, 2014, plaintiff’s counsel again wrote the Commissioner and requested an extension of time to file this appeal. R. at 4. On April 14, 2014, the Commissioner formally denied plaintiff’s request for an extension. Id. at 1-2. On April 23, 2014, plaintiff filed a motion in the District Court to equitably toll the deadline to file his complaint, Docket No. 11, which the Commissioner opposed. Docket No. 13. Judge Kane granted plaintiff’s motion on May 27, 2014 on the ground that plaintiff “should not be deprived of his day in court because his attorney failed, for whatever reasons, to file his complaint on time and was two days late in doing so.” Docket No. 14 at 2. Pursuant to Judge Kane’s order, the judgment was vacated and this case was reopened.


A. Standard of Review

Review of the Commissioner’s finding that a claimant is not disabled is limited to determining whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence in the record as a whole. See Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). The district court may not reverse an ALJ simply because the court 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). Moreover, “[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). The district 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. 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).

B. The Five-Step Evaluation Process

To qualify for disability benefits, a claimant must have a medically determinable physical or mental impairment expected to result in death or last for a continuous period of twelve months that prevents the claimant from performing any substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2). Furthermore,

[a]n individual shall be 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, regardless of whether such work exists in the immediate area in which he ...

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