United States District Court, D. Colorado
MICHAEL G. MOSER, Plaintiff,
CAROLYN W. COLVIN, Defendant.
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 Michael G. Moser's
("Plaintiff or "Mr. Moser") application for
Disability Insurance Benefits ("DIB"), and is
before the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(c). [#23, dated December 1, 2015].After carefully
considering Plaintiffs Opening Brief [#19], Defendant's
Response Brief [#20], Plaintiffs Reply Brief [#21], the
entire case file, the Administrative Record, and the
applicable case law, this court AFFIRMS the
case arises from Plaintiffs fourth attempt to secure DIB
based on chronic back pain status post fusion with
degenerative changes and obesity. [#18 at 1]. Mr. Moser
suffered a severe work-related injury on February 12, 2004,
that was originally diagnosed as an annular tear at the
L4/5level of his spine. [#14-11 at 386; #14-14
at 538]. Due to increased pain and the failure of
conservative treatments, Mr. Moser underwent L4 to SI
decompression and fusion surgery on his back on August 2,
2004. [#14-11 at 401, 410; #14-14 at 545]. Since his initial
surgery, Mr. Moser has undergone three additional procedures:
an August 2005 procedure to remove the hardware from the
August 2004 surgery, [#14-3 at 6, 19-20, 22]; a second in
2005 to remediate a development of osteomyelitis,
[id.]; and a third in November 2013 for an L3
through SI lumbar decompression and posterior spinal fusion,
[id. at 28-30]. Despite continued treatment, Mr.
Moser claims that his lumbar, leg, and foot pain remains a
severe hindrance to completing everyday tasks, especially
working. [#14-8 at 152-153; #14-9 at 198-207].
February 9, 2012, Mr. Moser filed a fourth application for
DIB under Title II of the Act that is at issue in this
instant action. [#14-5 at 72; #14-6 at 99-100, 103; #14-8 at
152-158]. Mr. Moser previously submitted three DIB
applications-September 15, 2004; October 26, 2005; and
September 8, 2008-each alleging the same February 2004 injury
as the cause of his disability. [#14-5 at 72; #14-6 101; #14-15
at 593]. All three applications were denied. Id. Mr.
Moser's most recent application alleges disability
stemming from the same February 2004 injury; however, this
application alleges disability beginning on December 10,
2009, at the age of 44-one day after an Administrative Law
Judge upheld the denial of his third application. [#14-5 at
72, 92; #14-8 at 152-153; #14-9 at 167, 171-175, 198-207].
Moser has a tenth grade education, [#14-5 at 94; #14-6 at
99], and worked as an equipment operator for 8 years and as a
delivery driver for a few months. [#14-8 at 162-163; #14-9 at
179]. Mr. Moser indicated that as an equipment operator he
undertook various other positions such as a welder, mechanic,
and septic system installer. [#14-9 at 238]. Each job
required Mr. Moser to sit, stand, walk, climb, kneel, crouch,
crawl, and handle, grab, or grasp big objects for ten (10)
hours per day, and required Mr. Moser to lift materials
approximately 50-100 lbs. [Id. at 187-189].
the three previous denials, Mr. Moser's fourth
application alleges that his pain caused by the February 2004
injury has become progressively more severe, prohibiting him
from engaging in substantial gainful activity. [#14-5 at 72,
93; #14-8 at 152-153; #14-9 at 167, 171-175, 198-207]. This
application was denied at the initial determination stage on
August 20, 2012. [#14-5 at 72; #14-6 at 104-105; #14-7 at
107]. On October 22, 2012, Mr. Moser requested a hearing
before an Administrative Law Judge, [#14-7 at 112-113].
Administrative Law Judge Richard Maddigan ("ALJ")
held a hearing on September 24, 2013, [#14-5 at 87; #14-7 at
122], at which Andrew Youngman, an employee of Citizens
Disability, L.L.C, represented Mr. Moser. [#14-7 at 110-111].
At the hearing, Mr. Moser did not testify; however, Mr.
Youngman argued that Mr. Moser's conditions had been
worsening since his previous denial. [#14-5 at 93].
Specifically, Mr. Youngman argued that between December 10,
2009, and March 31, 2010, Mr. Moser developed neuropathic
foot pain, as well as worsening depression and lumbar pain.
Duffin, a Vocational Expert ("VE"), testified at
the hearing. [Id. at 94-98]. The VE testified that
Mr. Moser's past job experience included a delivery
driver, a specific vocational preparation
("SVP") level four job, with medium exertion; an
equipment operator, an SVP level six job, which included
other skills such as a mechanic, SVP level seven job, medium
exertion, welder, SVP level six job, medium exertion, and a
septic system installer, SVP level four, medium exertion.
[Id. at 94]. Next, the ALJ posited whether an
individual could perform Mr. Moser's prior relevant work
activities if that person was:
1. a person of Mr. Moser's work background, a tenth grade
education, and an age of 44 years-old at the alleged on-set
2. a person who can perform a range of light activity;
3. a person who can occasionally bend, squat, kneel;
4. a person who can ambulate with the assistance of a cane;
5. a person who cannot use leg or foot controls.
[Id. at 94-95]. The VE testified that a person with
these limitations would not be able to perform Mr.
Moser's prior relevant work activities. [Id.].
The VE continued, explaining that light exertional jobs in
the national economy do exist for persons with similar
limitations, such as a storage facility rental clerk, SVP
level two; an assembler of small products, SVP level two; as
well as cashier II, SVP level two. [Id. at 95].
cross-examination, Mr. Youngman included an additional
condition on the ALJ's hypothetical: that the individual
would be able to sit or stand for only thirty minutes at a
time before requiring ten-minute breaks throughout the
workday. [Id. at 96]. The VE answered that such a
condition would "eliminate all competitive work."
[Id.]. Lastly, Mr. Youngman asked the VE how many
job absences employers tolerate per month, to which the VE
testified that a day and one-half per month was the common
figure. [Id.]. Neither Mr. Youngman, nor the ALJ,
questioned the VE further. [Id.].
reviewing the evidence of record and hearing the above
testimony, the ALJ issued his written decision on September
27, 2013. [Id. at 69]. The ALJ concluded that Mr.
Moser last met insured status requirements for DIB on March
31, 2010; that he did not engage in substantial gainful
activity between the alleged date of on-set of December 10,
2009, through March 31, 2010; and that he had severe
impairments including chronic back pain, status post fusion
with degenerative changes, and obesity. [Id. at
74-75]. At step four of the analysis, the ALJ determined that
Mr. Moser had the RFC to perform light work, involving only
occasional bending, squatting, and kneeling, a need to allow
a cane for ambulation, and no use of foot or leg controls.
[Id. at 77-78]. Ultimately, based on that RFC, the
ALJ determined that Mr. Moser was not disabled, as he could
make a "successful adjustment to other [light] work that
existed in significant numbers in the national economy."
[Id. at 83].
Moser requested a review of the ALJ's decision, which the
Appeals Council denied on April 9, 2015. [#14-2 at 1-5]. The
ALJ's order thus 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. Moser filed this action on June 11, 2015, [#1],
invoking this court's jurisdiction to review the
Commissioner's final decision under 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 ...