United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. WANG MAGISTRATE JUDGE
action comes before the court pursuant to Title II of the
Social Security Act (“Act”), 42 U.S.C.
§§ 401-33 for review of the Commissioner of Social
Security's (“Commissioner” or
“Secretary”) final decision denying Plaintiff
Brenda Van Metre's, application for Disability Insurance
Benefits (“DIB”). Pursuant to the Order of
Reference dated March 2, 2016 [#22], this civil action was
referred to the Magistrate Judge “for all
purposes” pursuant to 28 U.S.C. § 636(c) and
D.C.COLO.LCivR 72.2(e). The court has carefully considered
the Complaint filed September 18, 2015 [#1], Plaintiff's
Opening Brief filed January 8, 2016 [#19], Defendant's
Response Brief filed January 27, 2016 [#20], Plaintiff's
Reply Brief filed February 12, 2016 [#21], the entire case
file, the administrative record, and applicable case
For the following reasons, I respectfully REVERSE and REMAND
the Commissioner's decision.
October 2, 2012, Plaintiff Brenda Van Metre
(“Plaintiff” or “Ms. Van Metre”)
filed an application for DIB under Title II of the Act.
See [#13-5 at 120-121]. Plaintiff alleges she became
disabled on November 9, 2011, at the age of 50, following a
motor vehicle collision with a tractor trailer. See,
e.g., [#13-2 at 37; #13-5 at 120]. Her claim was
initially denied on February 6, 2013, and she filed a written
request for a hearing on March 15, 2013. [#13-3 at 52-64,
#13-4 at 74]. On January 10, 2014, Plaintiff and her counsel
appeared for a hearing before Administrative Law Judge Marsha
hearing, Plaintiff testified that she has a ninth-grade
education and had worked for approximately five years at
Dependable Auto Shippers as a vehicle inspector. In that
position, she “inspected vehicles when they came over
on the transport trucks…for any damages that might
have happened in between the transport.” [#13-2 at 35].
The company let her go in 2009. [Id.] Plaintiff then
worked seasonally for approximately eight months driving an
ice cream truck, and worked for Global Experience Specialties
helping to set up for shows at the Denver Convention Center.
[Id. at 36].
testified that in November 2011 she was in an automobile
accident with a tractor trailer, which ultimately caused her
significant back pain. [#13-2 at 37]. One year later, she
underwent back surgery for a spinal fusion. She testified
that before the surgery she could walk no further than half a
block without pain, and that she felt better after the
surgery and could walk “two to three blocks.”
[Id. at 38]. Plaintiff participated in physical
therapy after the operation.
Metre also suffers from arthritis in her right arm and
tendonitis in her left arm, for which she takes the pain
medicine naproxen. [#13-2 at 39]. She testified that she
experiences “shooting pains…up to [her]
elbows” when she attempts to lift anything.
[Id.] Plaintiff stated that the arm pain began in
December 2013 and her doctor referred her to a specialist.
[Id. at 40]. As for her back, Ms. Van Metre
testified that she experiences aching pain in her lower back
and, if she stands for longer than an hour, once she sits
down she “feels like [she is] sitting on [her]
spine.” [#13-2 at 41]. Nonetheless, Ms. Van Metre
dresses herself, is able to take a shower, cooks, cleans
dishes, vacuums, washes clothes, and grocery shops.
[Id. at 41-42]. Due to the pain, she is no longer
able to work on her truck, which requires lifting and
carrying heavy chains. However, she swims and rides bikes
with her ten-year old granddaughter, and watches television
with her brother, whose land she currently lives on.
[Id. at 42]. Plaintiff testified that she has
trouble sleeping and that “burning pains” in her
knuckles, arms, and hand wake her. [#13-2 at 43].
Metre participates in physical therapy approximately three
times a week. The pain in her right hand, her dominant hand,
is worse than in her left hand, and prevents her from
grasping or holding onto objects. [#13-2 at 44]. For example,
she will drop a cup of coffee; her “hand will just let
it go…[her] hands get numb and then [she] get[s] pains
into [her] arm.” [Id.] She cannot write for
very long and her hand numbs if she turns her arms upside
down. Plaintiff experiences numbness “two, three times
a day, if not more, ” which lasts for five minutes, and
the pain in her hands “comes and goes.”
[Id. at 45]. She experiences pain in her right hand
every day, which interrupts for about fifteen minutes
whatever task she is pursuing. [Id. at 46]. Ms. Van
Metre testified that she is able to lift up to five pounds,
and can sit for approximately forty-five minutes before her
legs begin to ache and her back hurts. [Id.]
Bryers testified as a vocational expert (“VE”).
The ALJ first questioned available jobs that involve light,
unskilled, simple, repetitive types of work for an individual
who can engage in frequent handwork, handling, fingering, and
who cannot climb or balance. [#13-2 at 47-48]. The VE
testified that such a person could work as a merchandise
marker, for which there are 12, 000 jobs in Colorado, as a
cashier, for which there are 20, 000 jobs in Colorado, or as
a collator operator, for which there are 650 jobs in
Colorado. [Id. at 48]. These jobs would accommodate
the employee missing one or two days a month. That same
individual could not perform these jobs if she were limited
to only occasional use of her dominant hand. The VE testified
that sandwich board carrier, school bus monitor, and
children's attendant positions require only occasional
handwork. Finally, the VE testified that none of
Plaintiff's skills from her previous jobs would transfer
to a sedentary position. [Id. at 50].
denied Ms. Van Metre's application in a written decision
issued February 27, 2014, concluding that Ms. Van Metre was
not disabled. [#13-2 at 12-23]. Plaintiff requested review of
the ALJ's decision, which the Appeals Council denied on
July 21, 2015. [#13-2 at 2]. 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). Plaintiff filed
this action on September 18, 2015. The court has jurisdiction
to review the final decision of the Commissioner. 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. Berna v. Chater,
101 F.3d 631, 632 (10th Cir. 1996) (citation omitted);
Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir.
2007). The court may not reverse an ALJ simply because she
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 her decision. See
Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).
“Substantial evidence is more than a mere scintilla and
is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Flaherty v.
Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (internal
citation omitted). Moreover, the court “may neither
reweigh the evidence nor substitute [its] judgment for that
of the agency.” White v. Massanari, 271 F.3d
1256, 1260 (10th Cir. 2001), as amended on denial of
reh'g (April 5, 2002). See also Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (“The
possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency's
findings from being supported by substantial
evidence.”) (internal quotation marks and citation
omitted). However, “[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) (internal 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,
515 F.3d at 1070 (internal citation omitted). 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) (internal citation