United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge.
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]. 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.
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. [#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].
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.
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].
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].
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. §
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
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).
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).
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, ...