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Nunez v. Colvin

United States District Court, D. Colorado

March 30, 2016

ENGELS ISAAC NUNEZ, Plaintiff,
v.
CAROLYN W. COLVIN, Defendant.

MEMORANDUM OPINION AND ORDER

Craig B. Shaffer, Magistrate Judge.

This action comes before the court pursuant to Title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 401-33, for review of the Commissioner of Social Security’s final decision denying Engels Isaac Nunez’s (“Plaintiff”) application for Disability Insurance Benefits (“DIB”). Pursuant to the Order of Reference dated June 9, 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 Doc. 26). The court has carefully considered the Complaint (filed July 1, 2014) (Doc. 1), Defendant’s Answer (filed December 17, 2014) (Doc. 9), Plaintiff’s Opening Brief (filed March 6, 2015) (Doc. 17), Defendant’s Response Brief (filed April 3, 2015) (Doc. 18), the entire case file, the administrative record, and the applicable law. For the following reasons, the court affirms the Commissioner’s decision.

BACKGROUND

In September 2012, Plaintiff filed an application for disability benefits and alleged that he became disabled in November 2009. (See Social Security Administrative Record (hereinafter “AR”) at 17, 36, 93-94, 231). Plaintiff alleged that his ability to work was limited by post-traumatic stress disorder (“PTSD”), traumatic brain injury, migraines with photophobia, osteoarthritis of the lumbar spine, knee problems, left ankle problems, temporomandibular joint pain, and hearing loss. See Id. at 235. Plaintiff later admitted that he began working as a bank teller in 2012 and, therefore, was applying for a “closed period” of disability for the period of November 2009 to December 2012. See Id. at 32. Plaintiff was born on September 7, 1983, and was 26 years old on the date of his alleged disability onset. Id. at 207, 231. He graduated from college in June 2012 and has previous work experience as a Staff Sergeant for the United States Army as well as experience in Student Services. Id. at 236-37. After his initial application was denied, Plaintiff requested a hearing, which was held on July 23, 2013, before an Administrative Law Judge (“ALJ”). See Id. at 1-5, 30-80[1].

Plaintiff was represented by counsel at the hearing and testified that he was diagnosed with PTSD in 2009. Id. at 39. He stated that at the time he was diagnosed he had suicidal ideations, homicidal ideations, and issues with domestic violence. Id. at 39-40. He stated that he also had frequent nightmares, avoidance reactions, irritability, anxiousness, and difficulty maintaining focus and concentration. Id. He testified, however, that he had been prescribed medications and that these medications helped with his symptoms. Id. at 41. Plaintiff also testified that he suffered from migraine headaches. Id. He stated that he had been prescribed Topomax and Botox injections to help with his migraines. Id. at 42. Plaintiff also testified that he had ankle, back, and knee problems, and he stated that he had hearing loss.[2]

Plaintiff testified that he was enlisted in the Army until January 2012; however, during the period of alleged disability, he was in the Warrior Transition Unit and did little work as a soldier. Id. at 35-36. Due to his disability, the Army offered Plaintiff the option of doing CQ duty (monitoring the barracks) or attending school. Id. at 37. Plaintiff chose to enroll in college, and he received a bachelor’s degree in business management on June 30, 2012. Id. at 37, 53. When asked whether a change in his condition had enabled him to return to work, Plaintiff testified that his motivation to work had nothing to do with his impairments. Id. at 51. Rather, Plaintiff said he was motivated by the need to pay child support and that he had simply learned ways to cope with his limitations. Id. at 51, 60. Plaintiff further admitted that, during his period of disability, he was receiving unemployment benefits, which requires a claimant to certify that he or she is ready and able to work and apply for work. Id. at 56.

A vocational expert (“VE”) also testified at the hearing. Id. at 72-79. 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) perform work at a light exertional level; (2) standing, walking, and sitting no more than six hours in an eight hour day; and (3) no more than occasional use of ramps, stairs, ladders, ropes, scaffolds, kneeling, crouching, or crawling. Id. at 73.

Based on these limitations, the VE testified that Plaintiff’s past relevant work in the Army would be eliminated. Id. However, the VE testified that the individual would still be able to work in a student services position. Id. The ALJ then posed a second hypothetical and asked the VE to assume that the individual could perform at a reasonable pace without an unreasonable number of rest periods, such that the worker would be off task for up to five percent of an eight-hour day. Id. at 74. The VE testified that the individual would be able to work in student services and as a bank teller. Id. at 75.

The ALJ then asked the VE to assume that the individual would be limited in his ability to understand, remember, and carry out complex or detailed instructions such that he would need to perform work at a Specific Vocational Preparation (“SVP”)[3] less than or equal to 4. Id. at 75. The VE testified that the bank teller position had an SVP of 5 and, therefore, would be eliminated; however, the student services job would still be viable. Id. The ALJ then inquired whether the individual could still be employed in student services with two additional limitations: (1) standing and walking up to four hours in and eight hour day; and (2) the individual would miss work two or more times per month on an unscheduled basis. Id. The VE testified that the student services job would be eliminated under these circumstances. Id.

Plaintiff’s counsel then asked the VE to assume an individual who would be limited to (1) a light range of work; (2) bending at the waist or stooping only occasionally; (3) standing or walking up to four hours in an eight hour day; (4) occasionally climbing ramps and stairs; (5) occasionally kneeling, crouching, and crawling; (5) fingering and handling frequently; (6) occasionally reaching in all directions with the dominant right upper extremity; and (7) no exposure to workplace hazards or pollutants. Counsel further specified that the individual would be limited to simple, routine, repetitive work with no quota demand; could have only occasional superficial interaction with coworkers; could have no interaction with the public by phone or in person; and could have only occasional interaction with supervisors. Id. at 77. The VE testified that there would be no competitive employment for such an individual. Id.

Plaintiff’s counsel then asked whether a person would be employable if they were distracted by psychological symptoms more than ten percent of the workday. Id. The VE testified that the cut off point for employability would be five percent. Id. at 78.

On July 31, 2013, the ALJ issued her decision denying benefits. Id. at 14-29. The ALJ’s opinion followed the five-step process outlined in the Social Security regulations.[4] At step one, the ALJ found that Plaintiff was not engaged in substantial gainful employment from November 23, 2009 through December 19, 2012. Id. at 19. At step two, the ALJ found that Plaintiff had the following severe impairments: (1) myofascial pain syndrome; (2) status post left ankle arthroscopy; (3) status post left knee arthroscopy; (4) PTSD; and (5) alcohol abuse. Id. At step three, the ALJ found that Plaintiff did not have an impairment that met or medically equaled a listed impairment. Id. at 20-21.

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) except that the claimant: can sit and stand/walk six hours in an eight-hour workday; can only occasionally climb ramps/stairs, climb ladders/ropes/scaffolds, kneel, crouch and crawl; and is limited in performing at a reasonable pace without an ...

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