United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
B. Shaffer United States Magistrate Judge
action comes before the court pursuant to Title II of the
Social Security Act (the “Act”), 42 U.S.C.
§§ 401-33, for review of the Commissioner of Social
Security's final decision denying Lawrence Michael
Amoto's (“Claimant”) application for
Disability Insurance Benefits (“DIB”). On January
14, 2016, the parties consented to the magistrate judge's
jurisdiction to “conduct any and all further
proceedings in this case, including the trial, and [to] order
the entry of final judgment.” Doc. 11. Accordingly, the
case was referred to this court on March 22, 2016. Doc. 20.
The court has carefully considered the Complaint (filed
October 28, 2015) (Doc. 1), Plaintiff's Opening Brief
(filed February 15, 2016) (Doc. 15), Defendant's Response
Brief (filed March 2, 2016) (Doc. 16), Plaintiff's Reply
(filed March 21, 2016) (Doc. 19), the entire case file, the
administrative record, and the applicable law. For the
following reasons, the court affirms the Commissioner's
January 2013, Claimant filed an application for disability
benefits and alleged that he became disabled in November
2010. (See Social Security Administrative Record
(hereinafter “AR”) at 14, 30, 107-113). Mr. Amoto
alleged that his ability to work was limited by Hepatitis C,
chronic fatigue, osteoarthritis in hands, metatarsalgia,
tennis elbow, low back pain, hip pain, and high blood
pressure. See Id. at 132. Mr. Amoto was born on
February 2, 1952, and was 58 years old on the date of his
alleged disability onset. Id. at 107. He completed
the 12th grade and had previous work experience as a
carpenter and a construction flagger. Id. at 133.
After his initial application was denied, Claimant requested
a hearing, which was held on August 8, 2014, before an
Administrative Law Judge (“ALJ”). See
Id. at 27-45, 70-77.
was represented by counsel at the hearing and testified that
due to his chronic fatigue, he had difficultly lifting
objects and that he could only walk one city block before
needing to stop and rest. Id. at 31. He also
testified that although he used to be his brother's
live-in caretaker, his ailments made it difficult to take
care of even himself. Id. at 32-33. He stated that
he did not do any yard work, did very little cooking, rarely
drove, performed few house chores, and often had to take naps
during the middle of the day. Id. at 32-35, 41. He
also testified that one of the side effects of his medication
was depression. Id. at 36. According to Mr. Amoto,
he was also easily irritated, had memory and concentration
problems, and had difficulty being out in public due to his
confusion. Id. 36-37.
vocational expert (“VE”) also testified at the
hearing. Id. at 43-45. The ALJ asked the VE to
assume hypothetically that an individual of Claimant's
age - with the same education and past work experience as
Claimant - had the following limitations: (1) perform work at
a light exertional level; (2) occasional bending, squatting,
kneeling; and (3) no complex tasks, defined as SVP: 2 or
less. Id. at 44.
on these limitations, the VE testified that Mr. Amoto could
perform his past relevant work as a flagger. Id. The
ALJ then posed a second hypothetical and asked the VE to
assume the same non-exertional limitations, but to limit the
exertional to sedentary. Id. The VE testified that
the individual would not be able to perform any of the past
relevant work. Id.
counsel then asked the VE to assume that the individual would
be absent from work more than two times per month.
Id. The VE testified that there would be no
competitive employment for such an individual. Id.
at 45. Counsel also asked whether all competitive work would
be precluded if the individual would regularly be off task
more than 20 percent of an eight-hour work day. Id.
The VE agreed that all work would be eliminated. Id.
August 22, 2014, the ALJ issued his decision denying
benefits. Id. at 11-25. The ALJ's opinion
followed the five-step process outlined in the Social
Security regulations. At step one, the ALJ found that Claimant
had not engaged in substantial gainful employment since
November 15, 2010. Id. at 16. At step two, the ALJ
found that Claimant had the following severe impairments: (1)
lumbar degenerative disc disease; (2) hepatitis C; (3)
coronary artery disease; (4) depression; and (5) anxiety.
Id. At step three, the ALJ found that Mr. Amoto did
not have an impairment that met or medically equaled a listed
impairment. Id. at 17-18.
then assessed the following residual functional capacity
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(b) except the claimant can only occasionally
bend, squat and kneel. The claimant can only occasionally
deal with the general public and requires work that does not
involve complex tasks (i.e., work with an SVP of 2 or less).
Id. at 18. In fashioning Claimant's RFC, the ALJ
discussed much of the medical evidence in Claimant's
records. The ALJ concluded that although Mr. Amoto's
medically determinable impairments could reasonably be
expected to cause his alleged symptoms, his statements
concerning the intensity, persistence, and limiting effects
of his symptoms were not entirely credible. Id.
specifically noted that Claimant's medical records were
not consistent with his allegations of total disability.
Id. In particular, the ALJ noted the lack of medical
records to support Mr. Amoto's claims. For example,
although he claimed disability beginning in November 2010,
the record contained no medical evidence prior to December
2011. Id. at 18. Further - following a solitary
podiatry appointment in December 2011 - there were no medical
appointments until the last half of 2012. Id. at
18-19. In addition, the ALJ credited the opinion of Dr. Brett
L. Barney, M.D., a consultative examiner who examined
Claimant and prepared a report. Id. at 19, 254-62.
Dr. Barney concluded that Mr. Amoto had the capacity to work
at a medium exertional level; however, the ALJ concluded that
Claimant was somewhat more limited. Id.
four, the ALJ concluded that Claimant was able to perform his
past relevant work as a construction flagger. Id. at
20. Consequently, the ALJ found that Mr. Amoto did not meet
the definition of “disabled” for purposes of the
Social Security Act. Id. at 21. Accordingly, his
application for disability benefits was denied.
the ALJ's decision, Mr. Amoto requested review by the
Appeals Council. Id. at 7-10. The Appeals Council
denied his request on August 28, 2015. Id. at 1-6.
The decision of the ALJ then became the final decision of the
Commissioner. 20 C.F.R. § 404.981; Nelson v.
Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993) (citation
omitted). Mr. Amoto filed this action on October 28, 2015.
Doc. 1. The 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);
Angel v. Barnhart,329 F.3d 1208, 1209 (10th Cir.
2003). The court may not reverse an ALJ simply because it 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 his 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, “[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 ...