United States District Court, D. Colorado
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 (“Commissioner” or
“Defendant”) final decision denying Plaintiff
Donald Rigg's (“Plaintiff” or “Mr.
Rigg”) application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”). Pursuant to the consent of the Parties
and Order of Reference dated October 12, 2016 [#16],
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 [#12] and
Defendant's Response Brief [#13], the entire case file,
the Administrative Record, and the applicable case law, this
court respectfully AFFIRMS the
case arises from Plaintiff's applications for DIB and SSI
protectively filed on or about April 6 and 26, 2012,
respectively. See [#8-3 at 104-05, 131; #8-5 at 278,
285]. Mr. Rigg completed the twelfth grade in 1978; he did
not attend college. See [#8-2 at 54-55, 84; #8-3 at
115, 126; #8-6 at 323; #8-8 at 556]. Plaintiff alleges that
he became disabled on April 1, 2012, due to depression and
“mental issues.” See [#8-6 at 317, 322].
Mr. Rigg was fifty-two at the date of onset of his claimed
Colorado Department of Human Services denied Plaintiff's
applications administratively on September 25, 2012.
See [#8-3 at 104-105, 106-27]. Mr. Rigg timely filed
a request for a hearing before an Administrative Law Judge
(“ALJ”) on November 19, 2012. See [#8-4
at 168-69]. ALJ William Musseman (the “ALJ”) held
a hearing on November 20, 2013 (the “2013
hearing”). [#8-2 at 51; #8-3 at 131].
2013 hearing, Mr. Rigg proceeded through counsel, and the ALJ
received testimony from Plaintiff and Vocation Expert Dr.
Dennis Duffin (the “VE”). See [#8-3 at
131]. Plaintiff testified that he currently resides with his
brother and sister in an apartment. [#8-2 at 56]. Plaintiff
testified that, although his current living situation
involves a lot of yelling and anger, he has to be there for
his brother who suffered a severe head injury in an accident.
[Id. at 63-64, 69].
asked about any work he has done since his alleged onset on
April 1, 2012, Plaintiff responded that he helped his
neighbor “cut and rake her lawn, ” and that does
work both inside the house and outside (e.g., “doing
gutters”). [Id. at 57]. However, his brother
or his sister managed the bills. [Id. at 69-70].
Plaintiff continued that he previously worked as a
laborer-pouring concrete, landscaping, building bridges, and
using large machinery. [Id.]. As a laborer,
Plaintiff had to carry and lift items that were 50 pounds or
heavier. See [id.at 57-58]. Relatedly, when
asked whether he could return to full-time employment mowing
lawns, Plaintiff testified that he would like to return to
mowing lawns, but that he physically cannot because of his
“body letting go.” [Id. at 64-65].
However, Plaintiff testified that he does not receive
treatment for his physical ailments. [Id. at 65].
his mental ailments, Plaintiff first testified that he
suffers from hallucinations that occur in his sleep, and that
his new medication has helped decrease the frequency of
daytime hallucinations. [Id. at 58-59]. However,
because his medication makes him itchy, drowsy, dizzy, and
causes blurry vision, Plaintiff testified that he naps for
about 4 hours during the day. [Id. at 59]. Plaintiff
also testified that, because of the daytime naps and
nighttime hallucinations, he does not sleep much at night,
and that this makes him angry. [Id. at 60-61, 66].
Plaintiff also worries incessantly about things on a daily
basis, he has issues with concentration, and he suffers from
migraine-like headaches that last approximately 3-4 days and
occur frequently. [Id. at 70-71]. For his mental
health issues (which may include schizophrenia, bipolar
disorder, depression, and anxiety, see [id.
at 72]), Plaintiff testified that he received treatment once
every two weeks at Aspen Pointe. [Id. at 61-62,
then testified about his social life. Plaintiff stated that
he spends time with friends, and that “it seems like
none of his [hallucinations] really bothers [him].”
[Id. at 61]. Rather, his mental issues are worse
when he is alone, trying to sleep, or when no one else is
his daily activities, Plaintiff testified that he usually
does the cooking and grocery shopping, he goes for walks,
takes drives to his friends' houses, fishes and swims,
does the laundry every few days, and has no issues with
personal hygiene. [Id. at 66-67]. However, Plaintiff
also testified that he responds poorly to mistreatment by
supervisors. [Id. at 68-69].
also testified at the 2013 hearing. Pursuant to the VE's
written evaluation, Plaintiff's past work included a
construction laborer, a specific vocational preparation
(“SVP”)level 2 very heavy exertion job; a
landscape laborer, SVP level 2 heavy exertion job; and
machinery rebuilder, a SVP level 3 medium exertion job.
See [#8-6 at 386].
then posited two hypotheticals to the VE. First, assuming a
person of the same age, education, and vocational history as
Mr. Rigg, could such an individual perform any of Mr.
Rigg's prior work with the following non-exertional
limitations: (1) no complex tasks, defined as SVP level 2 or
less; (2) no dealing with the general public; and (3) only
occasional dealing with co-workers. [#8-2 at 75]. The VE
responded that such an individual could perform only half of
the jobs in the three occupational groups identified as Mr.
Rigg's previous work. [Id.]. These jobs included
a farm worker II and a hand packager-both SVP level 2 medium
exertion jobs. [Id. at 75-76]. Second, assuming the
same individual as hypothetical one, but with additional
marked limitations in the ability to maintain attention and
concentration, perform activities within a schedule, and
maintain regular attendance and punctuality within customary
tolerances, could such an individual perform any full-time
work? [Id. at 76]. The VE testified that these
additional limitations would eliminate all competitive work.
counsel posed an additional hypothetical to the VE that
included a similar individual to the ALJ's first
hypothetical, except this individual was limited to no
interaction or contact with a supervisor, co-workers, or the
public. [Id. at 77]. The VE testified that such an
individual could not perform any competitive work.
[Id.]. Plaintiff's counsel then asked if such an
individual were limited to brief and superficial interaction
with supervisors and co-workers, could that individual
perform the jobs the VE identified, to which the VE responded
November 29, 2013, the ALJ issued a decision finding Mr. Rigg
not disabled under the Act. [#8-3 at 131]. Plaintiff
requested Appeals Council review of the ALJ's decision,
which the Appeals Council granted. [Id. at 148]. The
Appeals Council then remanded Mr. Rigg's case back to the
ALJ for further proceedings on a number of issues.
[Id. at 148-150 (detailing the issues for the
ALJ's consideration on remand)]. Accordingly, the ALJ
held a second hearing on September 23, 2015 (the “2015
hearing”). See [#8-2 at 32, 80].
2015 hearing, Mr. Rigg again proceeded through counsel, and
the ALJ received testimony from Plaintiff and Vocation Expert
Douglas Prutting (“VE Prutting”). Plaintiff
testified that he stopped working in April 2012, because
“it was like [he] lost [his] mind and couldn't
think.” [Id. at 85]. He continued that he
“had an attitude against everybody, ” that he
could not “trust nobody, ” and that he was
hearing voices “all day and all night” despite
his medications. [Id. at 85-86]. As to his auditory
hallucinations, Plaintiff testified that they have become so
bad he “can't deal with reality anymore, ”
and that they keep him up at night. [Id. at 86,
90-91]. Plaintiff also reported that his auditory
hallucinations make it impossible to work, because he cannot
take direction from a supervisor without “copping an
attitude.” [Id. at 92-93]. Plaintiff did
testify that he has some friends that he visits approximately
once a month, but that his auditory hallucinations make it
difficult to focus on conversations with his friends, and he
has cancelled camping trips because of his mental ailments.
[Id. at 86-87]. Mr. Rigg stated that he tries to
spend as much time alone as possible, but is generally
“easy going” and polite when talking to
neighbors. [Id. at 89, 94].
continued that his medication side effects diminish his
appetite, cause constipation, and cause headaches that last
3-4 days. [Id. at 88]. Plaintiff testified that he
takes two types of medications for his headaches, but his
headaches can still last days. [Id.]. Plaintiff also
stated that he reported to a Michigan emergency room in 2012,
because the medication Haldol made him feel like a
“zombie.” [Id. at 91-92].
his daily activities, Plaintiff testified that he goes
grocery shopping, but despite being polite and friendly to
people, he gets frustrated and thinks bad thoughts about
others in the grocery store. [Id. at 88-89].
However, Plaintiff stated that his auditory hallucinations
have not caused him to leave the grocery store because they
were bothering him, although they have prohibited from
actually going to the grocery store. [Id. at 89].
asked what has prohibited him from returning to full-time
work since April 1, 2012, Plaintiff testified, “My body
just won't put out no more.” [Id. at 95].
In addition, he stated that his diabetes causes his hands and
feet to go numb, and that he “can't do anything
about it until [he] see[s] [his] primary doctor.”
[Id. at 95-96].
Prutting also testified at the 2015 hearing. In recounting
Mr. Rigg's previous employment, VE Prutting testified
that Plaintiff had jobs as a ditch digger in construction and
laborer in construction-both SVP level 2 very heavy exertion
jobs; a day laborer, a SVP level 3 heavy exertion job; a
landscape laborer, SVP level 2 heavy exertion job; and a pump
servicer, a SVP level 7 medium exertion job. [Id. at
then proposed two hypotheticals to VE Prutting. First, the
ALJ inquired whether an individual with the same age,
education, and work history as Mr. Rigg with the
non-exertional limitations of: (1) no dealing with the
general public; (2) occasional dealing with co-workers; (3)
minimal supervision and no complex tasks, defined as SVP
level 2 or less unskilled work, would be able to perform any
of Plaintiff's past work. [Id.at 99]. VE
Prutting responded that such an individual could perform Mr.
Rigg's past work as a ditch digger and landscape laborer.
[Id.]. In addition, VE Prutting testified that such
an individual could perform the jobs of hand packager and
floor waxer-both SVP level 2 medium exertion jobs.
[Id.]. Second, the ALJ asked whether an individual
similar to that in the first hypothetical, but with marked
limitations in his ability to: (1) maintain concentration and
attention for extended periods of time; (2) perform
activities within a schedule, maintain regular attendance,
and be punctual within customary tolerances; and (3) sustain
ordinary routine without supervision, would be able to
perform any competitive work. [Id. at 100]. VE
Prutting responded, “No.” [Id.].
Rigg's counsel also posed hypotheticals to VE Prutting.
First, Plaintiff's counsel asked whether an employer
would tolerate an individual described in hypothetical one
who missed at least two days a month-either because he left
early or did not show up-because of his mental ailments.
[Id. at 101]. VE Prutting responded,
“No.” [Id.]. Plaintiff's counsel
also asked whether an employer would tolerate an individual
similar to the ALJ's first hypothetical that could not
act appropriately around co-workers and supervisors, to which
VE Prutting again responded, “No.”
November 5, 2015, the ALJ again issued an opinion that Mr.
Rigg was not disabled under the Act. [#8-2 at 32]. Plaintiff
again sought Appeals Council review of the ALJ's
decisions; however, the Appeals Council denied
Plaintiff's request, rendering the ALJ's decision the
final decision of the Commissioner. [Id. at 1-4].
Plaintiff sought judicial review of the Commissioner's
final decision in the United States District Court for the
District of Colorado on May ...