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Purdy v. Berryhill

United States District Court, D. Colorado

March 6, 2017

CHARLES A. PURDY, JR., Plaintiff,
NANCY A. BERRYHILL, [1]Defendant.


          Nina Y. Wang United States Magistrate Judge.

         This 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], [2] 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 Commissioner's decision.


         This case arises from Plaintiff's second application for DIB protectively filed on or about June 21, 2011[3] [#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, [4] due 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.

         The 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].[5]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].

         Plaintiff 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].

         Upon 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 420-22].

         Plaintiff 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].

         Plaintiff 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. [ 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].

         Ronald 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”)[6] 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.

         First, 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 nationally. [Id.].

         Second, 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. [Id.].

         Third, 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. [Id.].

         Plaintiff's 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.” [Id.].

         Following 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].

         Mr. 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].


         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 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.[7] 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).

         The ALJ 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 ...

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