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Rigg v. Berryhill

United States District Court, D. Colorado

July 25, 2017

DONALD JOSEPH RIGG, Plaintiff,
v.
NANCY A. BERRYHILL,[1] Defendant.

          MEMORANDUM OPINION AND ORDER

          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 (“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], [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 [#12] and Defendant's Response Brief [#13], the entire case file, the Administrative Record, and the applicable case law, this court respectfully AFFIRMS the Commissioner's decision.

         PROCEDURAL HISTORY

         This 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 disability.

         The 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].

         The 2013 Hearing

         At the 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].

         When 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].

         As to 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, 72-73].

         Plaintiff 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 around. [Id.].

         As to 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].

         The VE 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”)[3]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].

         The ALJ 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. [Id.].

         Plaintiff's 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 yes. [Id.].

         On 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].

         The 2015 Hearing

         At the 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].

         Plaintiff 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].

         As to 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].

         When 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].

         VE 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 99].

         The ALJ 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.].

         Mr. 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.” [Id.].

         On 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 ...


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