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Sturla v. Berryhill

United States District Court, D. Colorado

July 28, 2017

ALFRED J. STURLA, JR., Plaintiff,
NANCY A. BERRYHILL, [1] Defendant.


          Nina Y. Wang United States Magistrate Judge

         This 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], [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 [#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.


         This 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, [3] due 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 claimed disability.

         Plaintiff's 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, 68].

         June 2014 Hearing

         At the 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].

         Regarding 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].

         Plaintiff 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].

         Plaintiff 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].

         As to 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.].

         The VE 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”)[4] 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].

         November 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].

         Upon 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 surgery. [Id.].

         Plaintiff 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. at 85-86].

         Vocational 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].

         On 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[5] 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. § 1383(c)(3).


         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); 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 ...

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