United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. WANG, UNITED STATES MAGISTRATE JUDGE
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.
Jackson filed applications for DIB on January 2, 2013 and for
SSI on March 1, 2013. See [#1 at 1]. 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.
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].
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.]
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.
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).
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
Jackson's Challenge to the ALJ's Decision
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
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.
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
. . . 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;
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).
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 ...