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McGannon v. Colvin

United States District Court, D. Colorado

August 10, 2016



          Nina Y. Wang United States Magistrate Judge.

         This civil action arises under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-34 (2012) for review of the Commissioner of Social Security’s final decision denying Plaintiff William Ralph McGannon’s (“Plaintiff” or “Mr. McGannon”) application for Disability Insurance Benefits (“DIB”), and is before the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). [#15, #17, dated December 3, 2015].[1] After carefully considering Plaintiff’s Opening Brief [#19], Defendant’s Response Brief [#20], the entire case file, the administrative record, and the applicable case law, I AFFIRM the Commissioner’s decision.


         On July 23, 2012, Mr. McGannon filed an application for DIB under Title II of the Act. [#13-5 at 141-47]. Prior to filing his application, Mr. McGannon, whose education includes a bachelor’s degree, was employed for nearly twenty-four consecutive years at United Parcel Service (“UPS”). See [#13-2 at 53; #13-5 at 142]. At UPS, Mr. McGannon was a self-described “Box Handler, ” [#13-6 at 176], (or “Packaging Clerk” [#13-3 at 75]), who lifted approximately 1, 100 10-70 lbs. parcels and transported them about six feet, all-day, every day [#13-6 at 177]. Mr. McGannon alleges he became disabled on December 1, 2011 at the age of 43. [#13-3 at 67]. The record does not indicate that a traumatic incident occurred on that date; rather Mr. McGannon appears to allege that by December 11, his various impairments consisting of congestive heart failure, hypertension, bilateral kidney problems, chest pain, and anxiety had rendered him disabled.[2] [#13-3 at 70; #13-4 at 80]. Plaintiff’s disability claim was denied at the initial determination stage on February 1, 2013. [#13-4 at 80, ]. Mr. McGannon then requested a hearing before an Administrative Law Judge on February 14, 2013. [Id. at 87]. On January 28, 2014, Administrative Law Judge Jennifer A. Simmons (“ALJ”) held a hearing, [#13-2 at 30], at which Mr. McGannon was represented by attorney Brandon Selinsky. [#13-4 at 139].

         At the hearing, Mr. McGannon testified that he stopped working at UPS early in 2012 due to fatigue, shortness of breath, light-headedness, dizziness, and lack of coordination. [#13-2 at 35]. He testified that as a result of his condition, he could stand no more than two hours in an eight-hour day at maximum intervals of fifteen minutes, and sit no longer than two hours in an eight-hour day at maximum intervals of twenty minutes. [Id. at 40-41]. Mr. McGannon testified that he became “fidgety” and got “hot flashes” when sitting for twenty minutes or longer, but acknowledged he was not sure if those symptoms were related to his health problems. [Id. at 41]. Mr. McGannon also testified that he developed symptoms of gout beginning in January 2013. [Id. at 42-47]. Mr. McGannon testified that during a gout flare-up, he is bedridden by pain in his knees and ankles and moves around his apartment only with the assistance of a walker. [Id. at 42-43]. He testified that a gout flare-up happens every three weeks on average and lasts three to four days. [Id. at 42-44].

         With respect to daily activities and lifestyle, Mr. McGannon testified that he lives alone and is able to prepare simple meals for himself, brush his teeth, and bathe. [#13-2 at 43, 49]. He does not have a driver’s license and so he does not drive, but he uses public transportation and receives car rides from friends. [Id. at 49]. He goes to the gym and “the store.” [Id.] His mother, who lives close to him, drives him to the grocery store where he uses an electric scooter to shop. [Id. at 49, 55]. He also testified that he occasionally takes his grandchildren to see a movie and he visits his grandmother. [Id. at 51].

         Robert L. Schmidt testified at the hearing as a vocational expert (“VE”). [Id. at 56]. The ALJ posed three hypothetical questions to the VE. The first question was whether an individual with a bachelor’s degree could perform any job in the national economy that involved no more than two hours of standing but unlimited sitting in an eight-hour day; lifting, carrying, pushing, or pulling ten pounds occasionally and less than ten pounds frequently; no climbing of ladders, ropes, or scaffolds; occasional stair or ramp climbing; and could involve frequent crouching, crawling, stooping, or kneeling. [#13-2 at 56-57]. The VE testified that the hypothetical person could perform the jobs of charge account clerk, telemarketer, and call out operator. [Id. at 57-58]. The ALJ’s second hypothetical question was whether an individual with the same restrictions who missed two days of work a month could perform jobs in the national economy. [Id. at 58]. The VE testified that there are no jobs for such an individual. [Id.]. The third hypothetical was whether an individual who was off task 20% of the workday could perform jobs in the national economy. [Id. at 59]. The VE testified there are no jobs available for such an individual. [Id.]. The ALJ issued her decision on April 17, 2014, concluding Mr. McGannon is not disabled. [Id. at 9].

         Mr. McGannon requested a review of the ALJ’s decision, which the Appeals Council denied on July 27, 2015. [#13-2 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). Mr. McGannon filed this action on September 28, 2015. [#1]. The court has jurisdiction to review the final decision of the Commissioner pursuant to 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. Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003); Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation omitted). The court may not reverse an ALJ simply because it 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 ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). “It requires more than a scintilla, but less than a preponderance.” Id. 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) (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 v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (quoting Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). 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) (citation omitted).


         I. The ALJ’s Decision

         An individual is eligible for DIB benefits under the Act if he meets the insured status requirements, has not attained retirement age, has filed an application, and is under a disability. 42 U.S.C. 423(a)(1). A disability is “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or…last[s] for a continuous period of not less than 12 months…” § 423(d)(1)(A). An individual is determined to have 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…” § 423(d)(2)(A).

         The Commissioner has developed a five-step evaluation process for determining whether a claimant is disabled under the Act. 20 C.F.R. § 404.1520(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. 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, she is not eligible for disability benefits. Williams, 844 F.2d at 751. If, however, the claimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three. Id. 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. § 404.1520(d). Id. (quoting Bowen v. Yuckert, 107 S.Ct. 2287, 2291 (1987). 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.” Id. The ALJ then 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 Cir. 1996)) (noting that the step-four analysis includes three phases: (1) “evaluat[ing] a claimant's physical and mental [RFC]”; (2) “determin[ing] the physical and mental demands of the claimant's past relevant work”; and (3) assessing “whether the claimant has the ability to meet the job demands found in phase two despite the [RFC] found in phase one.”). “If the claimant is able to perform his previous work, he is not disabled.” Williams, 844 F.2d at 751. “The claimant bears the burden of proof through step four of the analysis.” Neilson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993).

         At step five, the burden shifts to the Commissioner to show that a claimant can perform work that exists in the national economy, taking into account the claimant’s RFC, age, education, and work experience. Id.

A claimant’s RFC to do work is 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. The decision maker first determines the type of work, based on physical exertion (strength) requirements, that the claimant has the RFC to perform. In this context, work existing in the economy is classified as sedentary, light, medium, heavy, and very heavy. To determine the claimant’s “RFC category, ” the decision maker assesses a claimant’s physical abilities and, ...

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