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Moser v. Colvin

United States District Court, D. Colorado

September 13, 2016

MICHAEL G. MOSER, Plaintiff,



         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 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].[1]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 Commissioner's decision.


         This 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 L4/5[2]level 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].

         On 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.[3] [#14-5 at 72; #14-6 101; #14-15 at 593]. All three applications were denied.[4] 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].

         Mr. 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].

         Despite 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. [Id.].

         Dennis 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")[5] 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 date;
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; and
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].

         On 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.].

         Upon 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].

         Mr. 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. § 1383(c)(3).


         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 ...

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