United States District Court, D. Colorado
ALFRED J. STURLA, JR., Plaintiff,
NANCY A. BERRYHILL,  Defendant.
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge
civil action arises under Title XVI of the Social Security
Act (“Act”), 42 U.S.C. §§ 1381-83(c)
for review of the Commissioner of Social Security's
(“Commissioner” or “Defendant”) final
decision denying Plaintiff Alfred J. Sturla, Jr.'s
(“Plaintiff” or “Mr. Sturla”)
application for Supplemental Security Income
(“SSI”). Pursuant to the Order of Reference dated
May 8, 2017 [#32],  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 [#25], Defendant's Response Brief [#28], and
Plaintiff's Reply [#29], the entire case file, the
Administrative Record, and the applicable case law, this
court respectfully REVERSES the Commissioner's decision
and REMANDS for further proceedings consistent with this
Memorandum Opinion and Order.
case arises from Plaintiff's application for SSI
protectively filed on February 6, 2013. See [#17-2
at 11; #17-3 at 91]. Mr. Sturla completed the ninth grade; he
never received his General Education Diploma
(“GED”). See [#17-2 at 40]. Plaintiff
alleges that he became disabled on February 6, 2013,
to depression, a herniated disc, heart problems, and a
learning disability. See [#17-3 at 93; #17-7 at
275]. Mr. Sturla was thirty-seven at the date of onset of his
application was denied administratively on July 11, 2013.
See [#17-3 at 91]. Mr. Sturla timely filed a request
for a hearing before an Administrative Law Judge
(“ALJ”) on February 24, 2015. See [#17-2
at 7]. ALJ Lowell Fortune (the “ALJ”) held a
hearing on June 27, 2014; however, the ALJ continued the
hearing until November 26, 2014, to allow Plaintiff's
attorney to submit current medical records and to allow the
ALJ to obtain medical expert testimony. [#17-2 at 11, 36,
June 2014 hearing, Mr. Sturla proceeded through counsel, and
the ALJ received testimony from Plaintiff and Vocational
Expert Martin Rauer (the “VE”). See
[#17-2 at 11]. Plaintiff testified that he currently resides
with his girlfriend, her two daughters, and his
girlfriend's mother. [Id. at 40]; but
see [#17-3 at 92 (reporting that Mr. Sturla is
homeless); #25 at 2 (same)]. When asked if he had worked or
sought work since his alleged onset date, Mr. Sturla
responded that he cannot work because he cannot walk or move
a lot due to pain, and that he mainly sits around and tries
to watch movies because of his herniated disc and his use of
a cane. [Id. at 40, 55-56]. Plaintiff also testified
that he was a recovering alcoholic, having been sober since
February 16, 2014, but that he did not attribute his current
inability to work to his alcoholism. [Id. at 41].
his physical ailments, Plaintiff testified that he suffers
from chronic lower back pain that radiates down his legs
(left being worse than right), a herniated disc, heart
failure, and migraines. [Id. at 46, 51]. As to his
chest pains, Plaintiff testified that he suffered from 2-3
episodes of pain, lasting between 2-15 minutes per day, and
that walking, sitting, standing, or lifting can exacerbate
the pain in his chest. [Id. at 58]. Plaintiff
testified that his average pain level in his lower back is
between 7 and 8 out of 10, but that certain movements cause
the pain to increase to a 9 or 10. [Id. at 52].
Relatedly, his left leg pain is between an 8 and 9 out of 10
while his right leg is between a 7 and 8 out of 10
[Id. at 52]. Plaintiff is prescribed several
medications for his ailments. [Id. at 46].
then testified that his chronic lower back pain interferes
with his ability to sit for longer than 5-10 minutes before
he must move around or stretch. [Id. at 52].
Plaintiff indicated that he could not perform a job that
required him to sit for more than 6 hours, as he could only
sit for approximately a half-hour to an hour out of an 8-hour
workday. [Id. at 54-55]. Similarly, Plaintiff
testified that he could stand for only 5-10 minutes unless he
is moving, and that he could walk for only “15 minutes
or so, ” needing 2-3 rests while walking two blocks.
[Id. at 53-54]. Plaintiff continued that he could
not walk or stand for 2 hours out of an 8-hour workday, as he
could stand or walk for only 15-30 minutes out of an 8-hour
workday. [Id. at 55]. Plaintiff reported that every
15-20 minutes he switches from sitting to standing throughout
the day. [Id. at 56].
also testified that he suffers from depression and anxiety.
[Id. at 46, 55, 57, 58]. Plaintiff indicated that
his anxiety makes it difficult for him to be around 8-10
people at a time, and that his depression causes him to
isolate himself from others, makes him irritable, and
prohibits him from engaging in activities. [Id. at
59]. He takes two medications for his depression.
[Id. at 59-60].
his daily activities, Plaintiff testified that he takes the
bus to the library to use the computer and to rent movies,
and that he goes to appointments twice a month. [Id.
at 60]. However, he explained that he cannot perform any
household chores, and only uses the microwave-his
girlfriend's mother does all the cooking. [Id.
at 61]. In addition, his girlfriend and her mother do all the
grocery shopping. [Id.].
also testified at the June 2014 hearing. The VE testified
that Plaintiff's past work included: (1) a fast food
worker, a specific vocational preparation
(“SVP”) level 2 light exertion job; (2) a fast
food manager, SVP level 5 light exertion job; (3) a
telemarketer, SVP level 3 sedentary job; and (4) a flower
deliverer, SVP 2 medium exertion job. See [#17-2 at
65-66]. The ALJ then suspended the hearing to allow more time
for Plaintiff to submit current medical records and so the
ALJ could secure the testimony of a Medical Expert.
[Id. at 66-67].
2014 Hearing At the November 2014 hearing, the ALJ
received testimony from Medical Expert Thomas Passo, M.D.
(the “ME”) an internist and noninvasive
cardiologist. [#17-2 at 71]. The ME relayed that
Plaintiff's impairments included: (1) back pain, lumbar
disc disease; (2) alcoholism with related complications of
transaminitis, fatty liver, and alcoholic cardiomyopathy; (3)
nonischemic cardiomyopathy, i.e., heart failure; (4) anxiety
and depression; and (5) gastritis with ulcers. [Id.
at 72-74]. The ME continued, however, that all of
Plaintiff's complaints were subjective except for his
chronic back pain and his cardiomyopathy that had
“significantly improved” with his sobriety.
[Id. at 75]. The ME testified that none of
Plaintiff's conditions met or medically equaled a listed
impairment. [Id. at 76]. Further, the ME indicated
that Plaintiff could perform light work with the ability to
sit for prolonged periods; however, Plaintiff could not stand
for prolonged periods, could not occasionally lift objects
heavier than twenty pounds, could not frequently lift objects
heavier than ten pounds, and could not perform repetitive
bending or squatting. See [id. at 77-78].
examination by Plaintiff's counsel, the ME testified that
he could not quantify what he meant by prolonged periods
because such knowledge was outside his expertise, but that he
did not believe Plaintiff could stand or walk for more than
an hour or two out of an 8-hour workday. [Id. at
79]. The ME also indicated that Plaintiff had no cardiac
limitations, and that he would approve Plaintiff for back
then testified that his situation had not changed much since
the June 2014 hearing, and that his back pain remained in the
8-9 pain range, despite two recent injections. [Id.
at 80]. Mr. Sturla also expressed that neither the ME nor any
other surgeon would approve him for back surgery given his
heart failure. [Id.]. Relatedly, Plaintiff testified
that he had to seek cardiologist approval before his dentist
would perform a routine cleaning. [Id. at 81].
Plaintiff continued that he suffers from chest pain episodes
of shortening breath, a tightening feel in his chest, and an
elevated heart rate a couple times a month. [Id. at
81-82]. Plaintiff explained that he could not do any
activities during a chest pain episode, and that they can
occur even when he is not exerting himself. [Id. at
83]. Plaintiff finished his testimony be explaining that he
cannot lift objects heavier than 5-10 pounds, that he suffers
from severe migraines twice a month that last for
approximately 15-20 minutes, and that his depression and
anxiety make it difficult to be around others. [Id.
Expert Cyndee Burnett (“VE Burnett”) also
testified at the November 2014 hearing. VE Burnett testified
that an individual of the same age and education as Mr.
Sturla who could perform SVP level 3 jobs with the additional
limitations of: (1) occasionally lifting 20 pounds and
frequently lifting 10 pounds; (2) sitting and/or walking for
60-minute intervals for 4 hours per day; (3) sitting for 8
hours per day; (4) occasionally climbing ramps and stairs;
(5) no climbing of ladders, scaffolds, or ropes; (6) no
repetitive stooping or crouching; (7) no exposure to
unprotected heights; and (8) no close interactions with
supervisors or coworkers and only occasional interactions
with the public, could not perform any of Mr. Sturla's
four previous jobs. [Id. at 88]. VE Burnett did
testify, however, that such an individual could perform the
jobs of document preparer, addressing clerk, and printed
circuit board assembler-each SVP level 2 sedentary jobs.
[Id. at 88-89]. Lastly, VE Burnett testified that,
if Plaintiff consistently experienced two cardiac episodes
lasting 10-30 minutes per month, this would eliminate gainful
employment and employers generally tolerate only one day per
month of absenteeism. [Id. at 89-90].
February 6, 2015, the ALJ issued an opinion that Mr. Sturla
was not disabled under the Act. [#17-2 at 29]. Plaintiff
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 1-3]. Plaintiff sought
judicial review of the Commissioner's final decision and
filed his pro se appeal in the United States District
Court for the District of Colorado on July 12, 2016, invoking
this court's jurisdiction to review the
Commissioner's final decision under 42 U.S.C. §
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);
accord Thompson v. Sullivan,987 F.2d 1482, 1487
(10th Cir. 1993) (“[I]f the ALJ failed to apply the
correct legal test, there is a ground for reversal apart from
a lack of substantial evidence.” (internal citation
omitted)). The court may not reverse an ALJ simply because
she 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 her 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). 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 ...