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Jackson v. Berryhill

United States District Court, D. Colorado

July 28, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.



         This civil action comes before the court pursuant to 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 the application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) filed by Plaintiff Billy Elijah Jackson, Jr. (“Plaintiff” or “Mr. Jackson”). This civil action was referred to the Magistrate Judge for a decision on the merits pursuant to the Order of Reference dated October 12, 2016 [#19], and under 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and D.C.COLO.LCivR 72.2. The court has carefully considered the Complaint filed May 23, 2016 [#1], Plaintiff's Opening Brief filed August 31, 2016 [#15], Defendant's Response Brief filed September 21, 2016 [#16], the entire case file, the administrative record, and applicable case law. For the following reasons, I respectfully AFFIRM the Commissioner's decision.


         Mr. Jackson filed applications for DIB on January 2, 2013 and for SSI on March 1, 2013. See [#1 at 1].[2] He alleged in the applications that he has been disabled since August 3, 2012, at the age of thirty, as a result of lower and upper back arthritis and degenerative disc disease of the lumbar spine. [Id.] Administrative Law Judge William Musseman (“ALJ”) denied Mr. Jackson's applications after an administrative hearing held August 14, 2014, at which Plaintiff was represented by counsel.

         During the administrative hearing, Mr. Jackson's attorney questioned him about his complaints of pain and fatigue. See [#11-2 at 41]. Mr. Jackson described the pain as “[p]inching, numbing, …all in my lower back and my hips, ” and represented that, while he experiences the pain daily, some days are worse than others. [Id. at 42]. He rated the pain as an “8, ” on a scale of 1 through 10, on his worst days. [Id.] He testified that he takes medication to alleviate the pain, and he also lies down. He represented that he has “bad days” approximately three times a week, and during some bad days he lies down all day. During those days, he rises to use the restroom; he occasionally rises to eat, and otherwise his wife or son takes food to him. [Id. at 43]. Mr. Jackson testified that his wife and son generally help him. His wife helps him dress and she ties his shoes on some days; other days, approximately twice a week, he is able to tie his own shoes. [Id. at 44]. The pain in Plaintiff's back also prevents him from lifting weight beyond twenty pounds. He testified that his daughter weighs approximately twenty pounds, and he is unable to pick her up off the floor. [Id.] In response to his attorney's questions, Mr. Jackson agreed with a doctor's assessment that he can stand for fifteen minutes at a time and for approximately two hours in an eight-hour day. [Id. at 45-46]. He also agreed with the assessment that he can sit for approximately twenty minutes at a time and for approximately two hours in an eight-hour day. [Id. at 46]. He testified that he lies down once for thirty minutes on a good day. Mr. Jackson told the ALJ that he believes his back pain prevents him from working a full-time job, and specifically limits his ability to bend, lift, and squat. [Id.] He also believes he is compromised due to the pain medication he requires. With respect to bending at the waist, he testified that “it's really hard” for him to bend over to pick up a piece of paper. [Id.] He further testified that he climbs stairs but the process takes him five to seven minutes and requires the assistance of a handrail. Mr. Jackson testified that his back pain radiates down his legs and up his back “[m]aybe…every 30 to 45 minutes.” [Id. at 47-48]. He represented that these limitations on sitting, standing, and walking have remained the same since the onset date of disability. With respect to fatigue, Mr. Jackson testified that he sleeps approximately two hours during a bad day and feels drowsy and groggy during a good day, and that he generally lacks motivation on most days. [Id. at 48-49].

         The ALJ then questioned Mr. Jackson briefly about his medical record. Plaintiff confirmed that he had spoken with a physician about surgery to address back pain, but that the procedure had been postponed “because they're still worried about what it may do to me or how the outcome may come out.” [#11-2 at 50]. Mr. Jackson also stated that he had recently changed providers in favor of a physician located closer to his home. [Id.]

         Finally, the ALJ posed three hypothetical scenarios to the vocational expert, Nora Dunn, for her testimony on whether Plaintiff could perform jobs in the community. Ms. Dunn considered Mr. Jackson's eleventh grade education and his previous work experience as a fast food worker and an asphalt laborer. Ms. Dunn assigned both positions a skill level of two. [#11-2 at 51]. In the first hypothetical, the ALJ asked whether an individual of Plaintiff's age and education who is limited to an exertional level of “full range of sedentary, ” could perform Plaintiff's previous jobs under the following limitations: “occasional bend, squat, kneel, only occasional foot or leg controls, no ladders or scaffolds, no unprotected heights, and no moving machinery.” [Id. at 52]. Ms. Dunn responded in the negative, but testified to the following types of work available to the hypothetical individual: document preparer, surveillance monitor, and telemarketer. [Id.] In the second hypothetical, the ALJ asked if jobs are available for the individual identified in the first hypothetical, who must also “be off task laying down all or part of each of [] three days [per week].” [Id. at 53]. Ms. Dunn answered in the negative. In the third hypothetical, the ALJ asked if jobs are available for the individual identified in the first hypothetical, who is limited to “doing work activity a maximum of four hours during a normal eight hour day.” [Id.] Ms. Dunn answered in the negative.

         The ALJ issued his written decision on September 22, 2014, concluding that Mr. Jackson was not disabled within the meaning of the Act from the alleged onset date, August 3, 2012, through the date of the written decision. [#11-2 at 20]. Plaintiff timely requested that the Appeals Council review the ALJ's determination. On April 15, 2016, the Appeals Council denied Plaintiff's request for reversal or remand. The decision of the ALJ then 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 May 23, 2016. This court has jurisdiction to review the final decision of the Commissioner. 42 U.S.C. § 405(g).


         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 he 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, 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).


         A. Mr. Jackson's Challenge to 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 twelve 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, No. 14-1341, 2015 WL 3775669, at *2 (10th Cir. June 18, 2015) (internal quotation marks omitted) (citing Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (noting that the step-four analysis includes three phases: (1) “evaluat[ing] a claimant's physical and mental [RFC]”; (2) “determin[ing] the physical and mental demands of the claimant's past relevant work”; and (3) assessing “whether the claimant has the ability to meet the job demands found in phase two despite the [RFC] found in phase one.”)). “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. Neilson, 992 F.2d at 1120.

. . . A claimant's RFC to do work is 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. The decision maker first determines the type of work, based on physical exertion (strength) requirements, that the claimant has the RFC to perform. In this context, work existing in the economy is classified as sedentary, light, medium, heavy, and very heavy. To determine the claimant's “RFC category, ” the decision maker assesses a claimant's physical abilities and, consequently, takes into account the claimant's exertional limitations (i.e., limitations in meeting the strength requirements of work). . . .
If a conclusion of “not disabled” results, this means that a significant number of jobs exist in the national economy for which the claimant is still exertionally capable of performing. However, . . . [t]he decision maker must then consider all relevant facts to determine whether claimant's work capability is further diminished in terms of jobs contraindicated by nonexertional limitations.
Nonexertional limitations may include or stem from sensory impairments; epilepsy; mental impairments, such as the inability to understand, to carry out and remember instructions, and to respond appropriately in a work setting; postural and manipulative disabilities; psychiatric disorders; chronic alcoholism; drug dependence; dizziness; and pain….

Williams, 844 F.2d at 751-52. The Commissioner can meet his or her burden by the testimony of a vocational expert. Tackett v. Apfel, 180 F.3d 1094, 1098-1099, 1101 (9th Cir. 1999).

         The ALJ first determined that Mr. Jackson was insured for disability through December 31, 2016. [#11-2 at 25]. Next, following the five-step evaluation process, the ALJ determined that Mr. Jackson: (1) had not engaged in substantial gainful activity since the alleged onset date of August 3, 2012; (2) had the severe impairment of “degenerative disc disease of the lumbar spine”; and (3) 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, 416.920(d), 416.925, and 416.926). [#11-2 ...

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