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Weaver v. Colvin

United States District Court, D. Colorado

February 13, 2017

STEVEN A. WEAVER, Plaintiff,


          Nina Y. Wang United States Magistrate Judge.

         This civil action comes before the court pursuant to Titles II and XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 401-33 and 1381-83(c) for review of the Acting Commissioner of Social Security's final decision denying the application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) of Plaintiff Steven Weaver (“Plaintiff” or “Mr. Weaver”). Pursuant to the Order of Reference dated April 5, 2016 [#22], this civil action was referred to the Magistrate Judge for a decision on the merits. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73; D.C.COLO.LCivR 72.2. The court has carefully considered the Complaint filed November 17, 2015 [#1], Plaintiff's Opening Brief filed February 29, 2016 [#17], Defendant's Response Brief filed March 21, 2016 [#18], Plaintiff's Reply Brief filed April 4, 2016 [#21], the entire case file, the administrative record, and applicable case law. For the following reasons, I respectfully AFFIRM the Commissioner's decision.


         On June 26, 2012, Mr. Weaver filed a Title II application for DIB and a protective Title XVI application for SSI. See [#13-4 at 232-233].[1] Mr. Weaver finished high school and has four years of a college education and a Master's degree. [#13-4 at 240; #13-3 at 218]. He alleged in the application that he became disabled on December 14, 2007, and suffers from a variety of physical and mental impairments. Plaintiff's arguments on appeal center around his coronary artery disease, a fracture sustained to his right arm, and his mental impairments. [#13-2 at 47; #17 at 47-56]. He was forty-five years old at the date of onset. Administrative Law Judge Jennifer Simmons (“ALJ”) denied Mr. Weaver's application after three administrative hearings held November 7, 2013, December 19, 2013, and January 14, 2014; Plaintiff was represented by counsel at each hearing. [#13-2 at 41-67; #13-3 at 92, 173].

         The ALJ continued the first administrative hearing, held November 7, 2013, to allow Mr. Weaver to obtain the testimony of two medical experts. [#13-2 at 44]. Medical expert Howard McClure, M.D., testified at the second hearing, held December 19, 2013. [Id.] Medical expert Robert Pelc, Ph.D. testified at the third hearing, held January 14, 2014. [Id.] Jammie C. Massey, a vocational expert (“VE”), also testified at the January 2014 hearing. [Id.] The ALJ then reviewed additional evidence Plaintiff submitted after the final hearing, before issuing her written decision. [Id.]

         On November 7, 2013, Mr. Weaver testified he had not worked since 2007. [#13-2 at 74]. However, he also testified that in 2011 he engaged in volunteer work for Temporary Assistance for Needy Families (“TANF”); he lost TANF funds when his duties changed such that he could not perform them. [Id. at 76; #17 at 7]. Also, between August 2012 and October 2012, Plaintiff was involved in a desalination business and was “bidding a project in Mexico, ” “following up with [potential investors], ” but testified that “[i]t was a brief thing, just one day, ” and the business closed. [#13-2 at 75-76]. The ALJ asked Mr. Weaver about several medical reports that referenced his work or attempts to work during 2012. The first was a March 2012 treatment note in which his treating physician, Tillman Farley, M.D., noted that Plaintiff reported working 20 to 32 hours in a week. Plaintiff asserted that Dr. Farley must have misunderstood him, and that in actuality he “may have worked 20 to 32 hours that month.” [Id. at 77-78]. The second was a January 2013 consultative exam authored by Kristin Helvig, Ph.D., a doctor to whom Social Security had referred Plaintiff, who noted Plaintiff “tried to do different jobs last year, ” and worked a sales commission job that he quit after three months. [Id. at 80]. Plaintiff represented that he did not remember that exam and had not participated in any such job. [Id. at 81-82]. The third was a May 2013 assessment that recorded Plaintiff's complaint that he had hurt his shoulder at work. [Id. at 82; #13-3 at 130-131]. Lastly, the ALJ asked Plaintiff about a July 2012 report that noted Plaintiff was working in landscaping and fencing outside. Plaintiff testified that he never engaged in any physical labor, he ran errands occasionally for his landlady, and that any comments to his doctors to the contrary were simply his effort to appear “upbeat.” [#13-2 at 83-84; #13-3 at 131]. Mr. Weaver also testified that he had looked for work “[a]ll the time” in the previous two years, mainly “[c]onsulting” and “[w]hatever is there.” [#13-2 at 85]. Finally, Plaintiff testified that he had driven himself and his daughter to California in 2011. The drive took four days and he drove “[n]o more than ten [hours]” a day. [Id. at 84-85]. They lived in California from the first of September to the first of November 2011. [Id. at 84]. The ALJ continued the hearing to allow Plaintiff to retrieve medical records from his cardiologist. [Id. at 86-87].

         During the reconvened hearing on December 19, 2013, Dr. McClure testified as an objective medical examiner as to Plaintiff's physical impairments. He testified that, according to his review of the medical evidence and in his opinion, Plaintiff's impairments did not meet or medically equal any listing, but specifically did not meet the listings at 4.04, 1.04 and 1.02. [#13-3 at 99-100]. Dr. McClure also testified that in his opinion a “full light RFC” was appropriate to accommodate Plaintiff's physical impairments. [Id. at 100]. Mr. Weaver's attorney objected to Dr. McClure's testimony on the basis that it was incomplete, and he asked the ALJ not to attribute any weight to the testimony. [Id. at 101].

         Also during this hearing, Plaintiff testified as to his work background. He described himself as an entrepreneur who specialized in constructing aquariums and who did not have much experience with supervisors, and stated that in 2007 he was a chief executive officer who was “on top of the world.” [#13-3 at 137-138]. His was a contract position and he was paid “based on the investment in the company”; his investors stopped investing toward the end of the year and he lost the position in December 2007. [Id. at 140-141]. He testified that during this time he had received other offers to work in his field but they required him to live in and relocate his family to Dubai, UAE, which he was unwilling to do. [Id. at 141].

         Plaintiff also testified that he deteriorated psychologically in 2008, when he began experiencing anxiety and panic attacks. [#13-3 at 142]. He stated he spent “most of [his] days on the phone with trying to find new investors in the company, and the technology that we had to try to get it back going.” [#13-3 at 134-136, 144]. The attacks were exacerbated by his wife's suicide in 2010. [Id. at 136, 189]. He testified that he has since “lost everything” and is homeless; he lives in a camper without heat that he must move periodically because he cannot afford to rent space at a trailer park. [Id. at 144]. Plaintiff testified that multiple stressors, including no regular residence, cause his attacks, and that he had and continues to have trouble interacting with people as a result of those stressors. [Id. at 137]. He testified that he feels out of control every day. [Id. at 167]. His teenage daughter was not living with him at the time of the hearing, but rather living with family friends. [Id. at 157].

         Mr. Weaver's attorney also examined him with regard to physical ailments. First, they discussed Mr. Weaver's right elbow, which he injured when his truck ran over it in June 2012. [#13-3 at 145]. Plaintiff testified that, by way of example, he now cannot shake a person's hand, open a door knob, or open a can of cat food without the sensation of his elbow popping and his arm giving out, which he described as very painful. [Id. at 145-146]. Mr. Weaver also spoke about pain in his back, shoulders, ankles, and knees, which he described as “old stuff, ” for which he takes morphine. [Id. at 146]. However, he stated, morphine fails to alleviate the pain and it causes him anger and depression as side effects. [Id.] He rolls his ankle frequently, and he testified that “[t]wo toes are almost always numb, ” and if he walks two blocks his “whole foot is numb.” [Id. at 165]. He also experiences chest pains with every panic attack, which he referred to as “stress-induced angina.” [Id. at 165-166].

         The hearing was reconvened a final time on January 14, 2014, at which time Dr. Pelc testified as an objective medical examiner as to Plaintiff's mental impairments. See [#13-3 at 173]. In response to Dr. Pelc's question whether Plaintiff was currently taking any psychological medication, Plaintiff testified that he was taking Trazodone to help him sleep and Clonazepam. [Id. at 181]. Dr. Pelc testified that he reviewed documentation regarding three conditions “from a psychological perspective”: a depressive disorder or bereavement problem, classified as an affective disorder under 12.04; a post-traumatic stress or anxiety not otherwise specified disorder, classified as an anxiety-related disorder under 12.06; and a personality disorder not otherwise specified under 12.08. [Id. at 182-183]. In Dr. Pelc's opinion, Plaintiff's conditions did not meet or equal the psychological listings regarding the B or C variable, [id. at 183-188], and that he “was capable of performing tasks that were at least detailed tasks, and that he could have occasional to frequent contact with others.” [Id. at 190].

         The VE also testified during this hearing. The ALJ queried whether a person of Plaintiff's age and level of education could perform Plaintiff's previous work positions taking into consideration the following limitations: lift and/or carry 50 pounds occasionally and 25 pounds frequently; stand and/or walk six hours in an eight-hour workday; sit six hours in an eight-hour workday; climb ramps and stairs frequently; stoop, kneel, crouch, or crawl frequently; climb ladders, ropes, or scaffolds occasionally; and interact with others, including coworkers, supervisors, and the public, only occasionally. [#13-3 at 218]. The individual was assigned no limitations with respect to balance, exposure to hazards, heights, or dangerous machinery, extreme temperatures, or the ability to understand, remember, and carry out detailed instructions. [Id.] The VE testified that such a person could not perform in Plaintiff's previous positions because of the limitation of only occasional interaction with others. [Id.] However, in response to the ALJ's question whether such an individual could perform other work, the VE provided three examples: hand packager, kitchen helper, and industrial cleaner. [Id. at 219]. The ALJ then asked whether such an individual could perform work if further limited to lifting and carrying twenty pounds occasionally and ten pounds frequently. The VE responded that this person could work as a housekeeper, routing clerk, or production assembler. [Id.] The ALJ posed a third hypothetical, in which the individual has no exertional limitations, has “the ability to understand, remember and carry out simple, routine tasks, ” but has no interaction with the public and only occasional, superficial interactions with coworkers and supervisors. [Id. at 219- 220]. The VE responded that no such work exists. As hypothetical four, the ALJ asked whether an individual who is “off task 20 percent of the workday, in addition to normal breaks” could perform Plaintiff's previous positions. The VE responded such a person could not. [Id. at 220]. Finally, the ALJ asked whether an individual who missed two days of work a month could perform any of Plaintiff's previous positions, and the VE answered in the negative. [Id.] Plaintiff's attorney also asked the VE a series of questions and ultimately objected to her testimony regarding other jobs available to Plaintiff on the basis that he could not verify her response. See [id. at 230]. The three hearings lasted a combined four hours and forty minutes. See [#17 at 6].

         Plaintiff subsequently submitted additional evidence, which the ALJ considered in rendering her decision. [#13-2 at 44]. The ALJ issued her written decision on April 11, 2014, concluding that Mr. Weaver was not disabled. [#13-2 at 43-67]. Plaintiff requested a review of the ALJ's decision, which the Appeals Counsel denied on September 23, 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). Plaintiff filed this action on November 17, 2015. This 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).


         A. Mr. Weaver's Challenge to the ALJ's Decision

         An individual is eligible for DIB benefits under the Act if he is insured, has not attained retirement age, has filed an application for DIB, and is under a disability as defined in the Act. 42 U.S.C. § 423(a)(1). Supplemental Security Income is available to an individual who is financially eligible, files an application for SSI, and is disabled as defined in the Act. 42 U.S.C. § 1382. An individual is determined to be under 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….” 42 U.S.C. § 423(d)(2)(A). The disabling impairment must last, or be expected to last, for at least 12 consecutive months. See Barnhart v. Walton, 535 U.S. 212, 214-15 (2002). Additionally, the claimant must prove he was disabled prior to his date last insured. Flaherty, 515 F.3d at 1069.

         The 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)(v). 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.; see also 20 C.F.R. § 404.1520(e). 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, he is not eligible for disability benefits. If, however, the claimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three. Williams, 844 F.2d at 750. 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. 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.” Williams, 844 F.2d at 751. The ALJ compares the RFC to the claimant's past relevant work to determine whether the claimant can resume such work. See Barnes v. Colvin, 614 F. App'x 940, 943 (10th Cir. 2015) (citing Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (internal quotation marks omitted)). “The claimant bears the burden of proof through step four of the analysis.” Neilson, 992 F.2d at 1120.

         At step 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.[2] Neilson, 992 F.2d at 1120. The Commissioner can meet his or her burden by the testimony of a vocational expert. Tackett v. Apfel, 180 F.3d 1094, 1098-1099, 1101 (9th Cir. 1999).

         The ALJ first determined that Mr. Weaver was insured for DBI through June 30, 2009. [#13-2 at 47]. She concluded that he must establish disability before June 30, 2009 to be eligible for DBI, and must establish disability on or after June 26, 2012 to be eligible for SSI.[3] [Id. at 44]. Next, following the five-step evaluation process, the ALJ determined that Mr. Weaver: (1) had not engaged in substantial gainful activity since December 14, 2007; (2) had severe impairments of “depression, anxiety/post-traumatic stress disorder, personality disorder, chronic pain (of unknown area), degenerative disc disease L4-5 and L5-S1, obesity, popliteal lesion in the right lower extremity, and tobacco abuse”; and (3) did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in Title 20, Chapter III, Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 416.920(d)). [#13-2 at 47-49]. At step four, the ALJ found that Plaintiff had an RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). The ALJ specified as follows:

[H]e is limited to lifting/carrying 20 pounds occasionally and 10 pounds frequently, standing/walking 6 hours in an 8-hour workday, and sitting 6 hours in an 8-hour workday. He has no limitations in balancing, can perform frequent stooping, kneeling, crouching, crawling, and climbing ramps and stairs; and occasional climbing on ladders, ropes and scaffolds. He must avoid concentrated exposure to unprotected heights, dangerous machinery, extreme heat and extreme cold. Mentally, the claimant remains able to understand, remember, ...

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