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Van Metre v. Colvin

United States District Court, D. Colorado

September 22, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         This 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 law.[1] For the following reasons, I respectfully REVERSE and REMAND the Commissioner's decision.


         On 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].[2] 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 Stroup (“ALJ”).

         At the 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].

         Plaintiff 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.

         Ms. Van 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].

         Ms. Van 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.]

         Ashley 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].

         The ALJ 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. § 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. 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 omitted).


         I. The ...

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