United States District Court, D. Colorado
STEVEN A. WEAVER, Plaintiff,
CAROLYN W. COLVIN, Defendant.
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge.
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.
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]. 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].
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.]
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].
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].
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].
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.
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].
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].
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].
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).
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
Mr. Weaver's Challenge to the ALJ's Decision
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
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.
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. 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).
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. [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,