United States District Court, D. Colorado
CHARLES A. PURDY, JR., Plaintiff,
NANCY A. BERRYHILL, Defendant.
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge.
civil action arises under Titles II and XVI of the Social
Security Act (“Act”), 42 U.S.C. §§
401-33 and 1381-83(c) for review of the Commissioner of
Social Security's final decision denying Plaintiff
Charles A. Purdy's (“Plaintiff” or “Mr.
Purdy”) application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”). Pursuant to the Order of Reference dated
June 8, 2016 [#20],  this civil action was referred to this
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. After carefully considering Plaintiff's Opening
Brief [#16] and Defendant's Response Brief [#17], the
entire case file, the Administrative Record, and the
applicable case law, this court respectfully AFFIRMS the
case arises from Plaintiff's second application for DIB
protectively filed on or about June 21, 2011 [#11-5 at 165;
#11-6 at 198; #11-8 at 373], and SSI filed on June 28, 2011
[#11-5 at 174]. Mr. Purdy completed eleventh grade at
Catalina High School in Tuscon, Arizona where he took special
education classes in several subjects, and he does not have
his General Education Diploma (“GED”).
See [#11-6 at 203; #11-7 at 285; #11-8 at 403].
Plaintiff alleges that he became disabled on April 9, 2011,
to Morton's Neuroma in both of his feet, later diagnosed
as diabetic peripheral neuropathy (“diabetic
neuropathy”), and because he could not read or write
well. See [#11-5 at 165, 174; #11-6 at 202, 229;
#11-8 at 404]. Mr. Purdy was forty-three at the date of onset
of his claimed disability.
Colorado Department of Human Services denied Plaintiff's
second application administratively on September 23, 2011.
See [#11-3 at 112; #11-4 at 114, 117; #11-8 at
373].Mr. Purdy timely filed a request for a
hearing before an Administrative Law Judge
(“ALJ”) on October 7, 2011. See [#11-4
at 120]. ALJ Paul R. Armstrong (“ALJ Armstrong”)
held a video hearing on September 28, 2012. [#11-8 at 373;
#11-9 at 444]. At the hearing, Mr. Purdy proceeded through
counsel, and ALJ Armstrong received testimony from Plaintiff,
Melissa Brassfield (a Vocational Expert), and Rhonda
Blackmore (Mr. Purdy's significant-other). See
[#11-8 at 373; #11-9 at 444]. On October 22, 2012, ALJ
Armstrong issued a decision finding Mr. Purdy not disabled
under the Act. [#11-9 at 455]. Plaintiff requested Appeals
Council review of ALJ Armstrong's decision, which the
Appeals Council denied, rendering ALJ Armstrong's
decision the final decision of the Commissioner of the Social
Security (“Defendant” or
“Commissioner”). [Id. at 460].
sought judicial review of the Commissioner's final
decision in the United States District Court for the District
of Colorado on May 21, 2014. [Id. at 465]. Before a
decision on the merits, however, the court granted
Defendant's Unopposed Motion to Remand for Further
Proceedings, remanding this matter back to an ALJ.
See [id. at 467]. On remand, the Appeals
Council vacated the Commissioner's final decision and
directed an ALJ to supplement the evidentiary record, and
reconsider Plaintiff's maximum residual functional
capacity (“RFC”), Plaintiff's subjective
complaints of the severity of his symptoms, and whether jobs
exist in significant numbers in the national economy that
Plaintiff can perform given his treating physician's
opinion that Plaintiff must elevate his legs during the
workday. See [id. at 478].
reassignment of Plaintiff's case, ALJ Kathryn D.
Burgchardt (the “ALJ”) held a second hearing on
September 16, 2015. See [#11-8 at 375, 399]. Ginger
L. Ryan, a non-attorney, represented Mr. Purdy at this
hearing, where the ALJ received testimony from Mr. Purdy and
Ronald J. Brennan, a Vocational Expert (“VE”).
See [id. at 375]. At his second hearing,
Mr. Purdy testified that he had not worked since his alleged
onset date of April 9, 2011. [Id. at 403]. When
asked why, Plaintiff responded, “they said it was a
layoff, but I was starting to have a lot of problems with my
feet and missing days.” [Id.]. Plaintiff
continued that his diabetic neuropathy was becoming
progressively more severe, prohibiting him from securing
other employment and, thus, being the reason for his DIB and
SSI applications. [Id. at 403-04]. Specifically,
Plaintiff testified that he initially began experiencing
numbness in his toes, a sharp pain occurring approximately
four to five times a day, followed by weeks of complete
numbness in his feet, and ultimately that the numbness is
constant in the ball of his feet, his toes, and up to his
left knee and approaching his right knee. [Id. at
also testified that his worsening diabetic neuropathy has
made it difficult to care for and play with his five-year old
daughter, although he still does puzzles, plays with blocks,
and takes his daughter to the park on occasion. [Id.
at 409-10, 413, 415]. In addition, his diabetic neuropathy
has made it difficult for him to drive because he fears
slamming the brakes. [Id. at 411]. When asked about
his hobbies, Plaintiff testified that he enjoyed going dirt
biking and fishing; however, it had become “extremely
difficult for [him] to do [either] anymore, ” given his
diabetic neuropathy. [Id. at 412]. Now, he sometimes
sits in a dark room by himself, rests in his recliner chair
to ease the pain in his feet, rarely exercises, and rarely
goes out to the movies or to dinner. See
[id. at 413-14]. Similarly, Plaintiff testified that
his significant-other and her nineteen-year old son do most,
if not all, of the household chores; however, he does do some
simple cooking, but not as much as he used to. See
[id. at 418-20].
then testified that his diabetic neuropathy was spreading to
his hands. [Id. at 422]. Because of this, Plaintiff
indicated that he was “working on trying to get back to
the neurologist to find out how significant it might be . . .
in [his] hands.” [Id.]. When asked how this
affected his self-care, Mr. Purdy responded that he no longer
shaves because he cut himself the last time he tried.
[Id.at 423, 429]. Plaintiff continued that he also
tried to help a friend change the brakes on a car, but he
could not use the wrenches for more than fifteen to twenty
minutes before dropping them. [Id. at 429].
Plaintiff testified that he “can[not] seem to hold on
to things, ” that he is dropping things frequently, and
that this is hindering his ability to find another job.
[Id. at 432-33].
J. Brennan, a VE, also testified at the hearing. The VE
testified that Plaintiff's past work included a mechanic
helper, a specific vocational preparation
(“SVP”) level 3 heavy exertion job; a cook, SVP
level 7 medium exertion job; an attendant, lodging facility,
a SVP level 3 medium exertion job; and an oven tender, SVP
level 4 medium exertion job. See [id. at
433-34]. Based on Plaintiff's ailments, the VE testified
that Plaintiff could not return to work at any of his
previous jobs. See [id. at 435-38].
Accordingly, the ALJ posited three hypothetical questions to
the VE to determine whether jobs existed in the national
economy that Plaintiff could perform.
the ALJ asked the VE to consider the employment opportunities
for an individual with the same age, education, and past work
experience as Mr. Purdy, who required unskilled SVP level 1
or 2 jobs, and had the following restrictions: (1) could lift
or carry only up to ten pounds frequently and 20 pounds
occasionally; (2) could stand or walk with normal breaks for
only two hours in an eight-hour workday and who used a cane
to ambulate; (3) could sit with normal breaks for only six
hours in an eight-hour workday; (4) could push and pull with
both upper and lower extremities within the weight
restrictions given; (5) could climb only stairs and ramps
occasionally; (6) could perform only basic reading and math;
and (7) could not perform commercial driving. [Id.
at 434-35]. In response, the VE testified that three
sedentary jobs existed that such an individual could perform.
[Id. at 435]. These included a food clerk orderer,
SVP level 2; a charge account clerk, SVP level 2; and a
production helper/utility worker, SVP level 2-all of which
existed in significant numbers in Colorado as well as
the ALJ inquired about an individual with the same
restrictions as hypothetical one; however, this
individual's ability to perform fine manipulation with
his hands was limited to “only frequent, ” with
no limitations on bilateral manual dexterity for gross
manipulation. See [id. at 436]. The VE
testified that a person with this limitation could not
perform the job of a food clerk orderer, as such a job
required constant fine manipulation. [Id. at 437].
However, such an individual could perform the jobs of charge
account clerk and production helper/utility worker, because
both required only frequent fine manipulation.
the ALJ further limited the hypothetical to an individual
with the same restrictions as hypotheticals one and two;
however, this individual would miss at least three days a
month due to a combination of impairments. [Id. at
438]. In response, the VE testified that such an individual
could not perform any work that existed in the national
economy. [Id.]. The VE continued that his testimony
was consistent with the Dictionary of Occupational Titles
(“DOT”) and its companion publications.
representative, Ms. Ryan, also posed an additional
hypothetical to the VE. She asked whether an individual with
the restrictions identified in hypothetical two who also had
to elevate his legs to thigh and/or waist height for
eighty-percent of the day could perform the jobs of charge
account clerk or production helper/utility worker.
[Id.]. The VE responded, “No. No.”
the hearing, and upon reconsideration of the record and
supplemental evidence, the ALJ issued a written decision
finding Plaintiff not disabled on November 13, 2015. [#11-8
at 371-390]. The ALJ concluded that jobs existed in
significant numbers in the national economy that Plaintiff
could perform, despite several severe impairments.
[Id. at 377, 388]. Thus, the ALJ concluded that
Plaintiff was not disabled as defined under the Act.
[Id. at 389].
Purdy did not file any exceptions to the ALJ's decision;
thus, the ALJ's order 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 January 22, 2016
[#1], invoking this court's jurisdiction to review the
Commissioner's final decision under 42 U.S.C. §
1383(c)(3). On appeal, Mr. Purdy challenges the ALJ's
failure to adequately consider the impairments in his upper
extremities, allegedly caused by Lateral Epicondylitis
(“Tennis Elbow”) in his left elbow and the
spreading of his diabetic neuropathy into his hands.
See [#11-13 at 678-79, 702; #16 at 5].
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
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, 1098-99, 1101 (9th Cir. 1999).
found that Mr. Purdy was insured for DIB through December 31,
2014. [#11-8 at 377]. Next, following the five-step
evaluation process, the ALJ determined that Plaintiff had not
engaged in substantial gainful activity since his alleged
onset date of April 9, 2011. [Id.]. At step two, the
ALJ determined Mr. Purdy had the following severe
impairments: diabetes mellitus with associated peripheral
neuropathy, obesity, borderline intellectual disorder, and an
affective disorder. [Id.]. At step three, the ALJ
determined that Plaintiff 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), 404.1525, 404.1526). [Id.
at 380-82]. At step four, the ALJ found that Mr. Purdy had
the RFC “to perform unskilled work . . . in jobs
requiring no more than basic reading and math skills, and
jobs where he would not have to operate motor vehicles for
commercial purposes” subject to additional limitations,
[id. at 382], and that ...