United States District Court, D. Colorado
HENRY E. BROZOVICH, JR., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER DENYING REQUEST FOR
S. Krieger Chief United States District Judge.
MATTER comes before the Court on the Plaintiff Henry E.
Brozovich Jr.’s appeal of the Commissioner of Social
Security’s final decision denying his applications for
Disability Insurance Benefits under Title II of the Social
Security Act (SSA), 42 U.S.C. §§ 401-33, and
Supplemental Security Income under Title XVI of the SSA, 42
U.S.C. §§ 1381-83c.
Brozovich applied for both disability insurance benefits and
supplemental income in 2012. In each application, he asserted
that his disability began on October 1, 2011 as a result of
intransigent back pain. His claims were initially denied. He
filed a written request for a hearing before an
Administrative Law Judge (ALJ), and a hearing was held on
July 26, 2013. The ALJ denied benefits in a written decision
(the Decision). The Appeals Council denied Mr.
Brozovich’s request for review; thus, the Decision
became the Commissioner’s final decision for purposes
of judicial review. Krauser v. Astrue, 638 F.3d
1324, 1327 (10th Cir. 2011). Mr. Brozovich filed a timely
appeal to this Court.
argument was held on March 22, 2016, and the Court issued an
Oral Ruling reversing the Commissioner’s decision and
remanding for further administrative proceedings. But the
Court stayed entry of judgment for 30 days pending a request
for reconsideration by the Commissioner and supplemental
briefing by the parties. The Commissioner filed a
Supplemental Brief (#20) seeking
reconsideration of the Court’s Oral Ruling. The
Plaintiff filed a Response (#22) in opposition. The Court has
considered all pleadings, supplemental briefing, and the
jurisdiction pursuant to 42 U.S.C. § 405(g), the Court
reconsiders, but affirms, its March 22, 2016 Oral Ruling.
Supplementing its prior findings and conclusions with this
opinion, the Court REVERSES the Commissioner’s decision
to deny benefits AND REMANDS for further administrative
Standard of Review
Court reviews the Commissioner’s decision to determine
whether the factual findings are supported by substantial
evidence and whether correct legal standards were applied.
Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir.
2000). This case does not turn on whether the record contains
substantial evidence to support factual findings, but instead
upon whether the Decision demonstrates application of the
correct legal standard. If the Decision applies the wrong
legal standard, or fails to clearly demonstrate application
of the correct standard, it must be reversed. Glass v.
Shalala, 43 F.3d 1392 (10th Cir. 1994).
Brozovich’s alleged disability is based upon pain
arising from lumbar spinal degeneration. He worked for 36
years before filing his applications. While they were pending
he tried to work at his job as a delivery truck driver, but
due to what he characterized as unrelentingly pain, he was
unable to work regularly. As a consequence, his earnings were
insufficient to rise to the level of substantial gainful
activity during 2011 and 2012.
determined at Step 2 that Mr. Brozovich had a severe
impairment of degenerative disc disease of the lumbar spine
(L/3/L5/S1), at Step 3 that it did not meet or equal any
Listing, and at Step 4, that Mr. Brozovich had an RFC to
perform the full range of light work although he could not
work as a delivery driver. At Step 5, the ALJ found that the
Medical-Vocational Guidelines directed a finding that Mr.
Brozovich was disabled.
Brozovich testified that while his applications were pending,
he worked two to three days per week for five to six hours
each day. He needed to lie down after work and recover on
days that he did not work. When he had a bad day, he was
bedridden for the day. He described experiencing severe and
steady chronic pain in his lower back, which sometimes
radiated down his legs. He described the pain as being at a
level of 7 or 8 out of 10 (10 being the worst pain) on an
average day while taking medication, and a 9 or 10 out of 10
on a bad day while taking medication. The medication made him
tired. When he participated in a recommended rehabilitation
program, it took him a month to recover. He was not able to
sit for longer than 30 minutes at a time and was only able to
lift about 30 pounds.
Brozovich’s medical records reflect primary treatment
from Dr. Krotchko beginning in May, 2011 and continuing
through July, 2012 for constant, aching lower back pain. Dr.
Krotcho’s initial examination showed full range of
motion but back stiffness, and x-rays showed mild to moderate
discogenic changes at L4-L5 and L5-SI. Dr. Krotchko examined
Mr. Brozovich every few months; each time Mr. Brozovich
reported that the pain was the same or worse. Dr. Krotcho
employed a combination of approaches including prescription
pain medication and muscle relaxants, physical therapy, and
an MRI study (which revealed mild lower lumbar spine
degenerative changes with tiny annular tears at L3-L5 but no
cause for radiculopathy being seen). Over the course of Dr.
Krotcho’s treatment, he observed deterioration in Mr.
Bozovich’s condition and increasing complaints of pain
accompanied by lumbar lordosis, back muscle spasm, decreased
range of motion, bilateral lumber spinal and paraspinal
muscle tenderness. His notes reflect that Mr.
Brozovich’s back pain was “out of
proportion” to x-ray and MRI findings and that his
symptoms were worse despite home exercises and physical
therapy. As a consequence, Dr. Krotcho referred Mr. Brozovich
to an orthopedist, Greg P. Gutierrez, M.D.
Gutierrez examined Mr. Brozovich and obtained new x-rays. The
new x-rays also showed mild to moderate lower lumbar spine
degenerative changes. Dr. Gutierrez diagnosed mechanical low
back pain and recommended different exercise modalities,
which Mr. Brosovich tried.
considering Dr. Gutierrez’ assessment, Dr. Krotchko
diagnosed Mr. Bosovich as suffering from chronic
musculoskeletal lumbrosacral pain that was caused or
exacerbated by his job which required prolonged sitting.
Using the form promulgated by the Social Security
Administration that quantifies work-related functional
abilities, Dr. Krotchko found that Mr. Brozovich could:
Lift/carry 21-50 pounds occasionally, 11-20 pounds
Sit 30-40 minutes at one time, three hours total;
Stand one hour at one time, two hours total;
Walk one hour at one time, two hours total;
Lie down/rest one hour per eight-hour workday;
Not workaround unprotected heights, moving mechanical parts,
and extreme cold;
Occasionally work around humidity, wetness, dust, odors,
fumes and pulmonary irritants, extreme cold or heat, and
Frequently operate a motor vehicle;
Occasionally climb stairs, ramps, ladders and scaffolds,