United States District Court, D. Colorado
WILLIAM R. BRAKE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
Michael E. Hegarty United States Magistrate Judge.
William R. Brake, appeals from the Social Security
Administration (“SSA”) Commissioner's final
decision denying his application for disability insurance
benefits (“DIB”), filed pursuant to Title II of
the Social Security Act, 42 U.S.C. §§ 401-33, and
his application for supplemental security income benefits
(“SSI”), filed pursuant to Title XVI of the
Social Security Act, 42 U.S.C. §§ 1381-83c.
Jurisdiction is proper under 42 U.S.C. § 405(g). The
Court first holds the ALJ did not err in assigning little
weight to the opinion of Mr. Brake's treating physician.
Next, substantial evidence supports the ALJ's finding
that Mr. Brake's impairments do not meet Listing 1.04 for
disorders of the spine. Finally, the ALJ did not err in
determining Mr. Brake's RFC or in concluding that Mr.
Brake can perform the duties of his past relevant work, as
they are conducted in the national economy. Accordingly, the
Court affirms the ALJ's decision that Mr. Brake was not
disabled from May 15, 2013 through the date of the decision.
Mr. Brake's Conditions
William R. Brake, was born on August 4, 1952; he was
sixty-one years old when he filed his application for DIB and
SSI. [AR 113]. Mr. Brake claims he became disabled on May 15,
2013 due to physical impairments. [Id.]
Mr. Brake first saw Cardiologist Stephen Crowley in 2002, [AR
293-94], he did not regularly visit Dr. Crowley until 2011.
[AR 252]. During one of Mr. Brake's 2011 visits with Dr.
Crowley, he reported “progressive shortness of breath,
difficulty bending over, but no chest pain.”
[Id.]. However, in two separate 2012 visits, one in
March and the second in September, Mr. Brake reported no
chest pain. [AR 237-48].
falling at home in May 2013, Mr. Brake underwent an MRI of
the cervical spine at the recommendation of Dr. John Oro. [AR
204, 219-21]. The MRI revealed “multilevel degenerative
disk disease and foraminal stenosis.” [AR 220]. Mr.
Brake subsequently reported to Dr. Oro that he experienced
numbness and tingling in his hands and pain in the back of
his neck. [AR 216-18]. In light of his symptoms and medical
history, Dr. Oro recommended a three-level anterior cervical
discectomy and fusion. [Id.] Mr. Brake consented and
underwent surgery in August 2013. [AR 213-15].
an appointment with Dr. Crowley on September 17, 2013, Mr.
Brake reported shortness of breath, but he stated that he was
not suffering muscle weakness, chest pain, or numbness. [AR
234]. Shortly thereafter, Mr. Brake reported to Dr. Oro for a
surgery follow-up appointment. [AR 209]. Dr. Oro noted that
Mr. Brake had full strength in his deltoid, biceps, triceps,
and hand grips, but the numbness in his upper extremities had
not improved. [Id.]. Mr. Brake continued to report
numbness in his hands and feet during an October 25, 2013
appointment with Dr. Oro. [AR 208]. By December 16, 2013, Dr.
Oro noted Mr. Brake was improving well and has only
“some residual neck pain if he sleeps the wrong
way.” [AR 207]. However, in March 2014, Dr. Oro stated
that Mr. Brake continued to experience “neurologic
symptoms, including pain, decreased sensation, and weakness
in his hands.” [AR 206]. Additionally, Dr. Oro noted
that Mr. Brake is not able to return to work at King Soopers.
April 23, 2014, Dr. Oro completed an opinion statement, which
concluded that Mr. Brake is permanently unable to return to
his prior employment. [AR 296]. Dr. Oro provided the
following restrictions for Mr. Brake: (1) no climbing racks
or ladders, (2) no operating machinery, (3) no walking or
standing, (3) no stooping or kneeling, (4) no carrying
objects greater than five pounds, and (5) no consistent use
of the hands or wrists. [Id.]
Brake visited Dr. Crowley for check-up appointments on August
13, 2015 and February 16, 2016. [AR 229-32]. Mr. Brake
informed Dr. Crowley that he is able to walk around his lake
and take care of his grandchildren. [AR 230]. Although he
stated he was not experiencing chest pain, muscle weakness,
or numbness, Mr. Brake continued to report shortness of
Brake asserts he first became disabled on May 15, 2013. [AR
113]. On August 28, 2014, the SSA initially denied Mr.
Brake's application for DIB and SSI. [AR 62-66]. Mr.
Brake subsequently requested a hearing before an ALJ, which
took place on March 7, 2016. [AR 28, 67]. On April 5, 2016,
an ALJ issued an opinion holding that Mr. Brake is not
disabled. [AR 16-24]. According to the ALJ, although Mr.
Brake has severe impairments, they do not meet the severity
of any of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. [AR 18-20]. Then, the ALJ held that,
despite Mr. Brake's limitations, he is capable of
performing his past work as a stock control manager, as that
job is generally performed in the national economy. [AR
Appeals Council subsequently denied Mr. Brake's request
for review, making the SSA Commissioner's denial final
for the purpose of judicial review. See [AR 1-3];
see 20 C.F.R. § 416.1481 (“The Appeals
Council's decision, or the decision of the administrative
law judge if the request for review is denied, is binding
unless you or another party file an action in Federal
district court, or the decision is revised.”). Mr.
Brake timely appealed the ALJ/Commissioner's final
decision to this Court. Compl., ECF No. 1.
held a hearing regarding Mr. Brake's application on March
7, 2016. [AR 28-51]. Mr. Brake and a vocational expert
testified at the hearing. [AR 29]. Mr. Brake stated that he
stopped working in May 2013 because of a neck injury. [AR
36-37]. Although he continued looking for a job, Mr. Brake
informed the ALJ that he did not think he would be able to
maintain employment. [AR 36].
then asked Mr. Brake about his current pain. [AR 36-37]. Mr.
Brake stated that his neck and shoulders cause him discomfort
and keep him from lifting more than twenty-five pounds. [AR
37]. He further testified that he could stand for only three
to four hours during an eight-hour work day. [AR 38]. He then
stated that although the spine surgery he had in 2013
improved his condition, he still has loss of feeling in his
fingertips. [AR 39-40].
Brake also testified about his activities of daily living.
[AR 41-42]. He first stated that he regularly babysits his
granddaughters, who are eight months and six years old. [AR
41]. He changes the younger granddaughter's diaper and
feeds her two meals a day. [Id.] Mr. Brake testified
that he can lift the eight-month-old granddaughter, who
weighs approximately fifteen pounds, but he cannot lift the
older granddaughter, who weighs sixty-five to seventy pounds.
[Id.] Mr. Brake then told the ALJ that he does some
cooking, no cleaning, and all of his own laundry. [AR 41-42].
Additionally, he stated that he goes up and down his stairs
once per day. [AR 42]. Regarding his heart condition, Mr.
Brake testified that it has not limited his ability to put
his hands over his head, but it causes him shortness of
breath. [AR 42].
response to questions from Mr. Brake's attorney, Mr.
Brake explained that before his surgery he would pass out and
fall over frequently because of pressure on his spinal cord.
[AR 46]. Although this has not occurred since the surgery, he
continues to experience difficulty standing, shooting pain in
his legs and back, and numbness in his hands and wrists. [AR
then questioned the vocational expert. [AR 47-51]. The
vocational expert first testified that Mr. Brake had
performed the positions of stock clerk and stock control
manager, which as performed in the national economy, involve
heavy work and light work, respectively. The ALJ then had the
vocational expert imagine a hypothetical individual who could
occasionally lift twenty-five pounds; frequently lift 10
pounds; stand and walk for six hours during an eight-hour
workday; and could never climb ladders, ropes, or scaffolds.
[AR 48]. The ALJ asked the expert whether this individual
could perform Mr. Brake's previous work. [AR 49]. The
expert opined that an individual with these restrictions
could perform the duties of a stock control manager.
Mr. Brake's attorney questioned the vocational expert.
[AR 49-50]. The expert testified that although the
hypothetical individual could perform the general duties of a
stock control manager in the national economy, the individual
could not perform Mr. Brake's previous responsibilities.
[AR 49]. Then, Mr. Brake's attorney imposed additional
restrictions on the hypothetical individual and asked the
vocational expert whether the individual could complete the
general duties of a stock control manager. [AR 50]. The
vocational expert testified that an individual who could also
not stoop, kneel, bend at the waist, or lift his arms above
shoulder level would not be able to maintain employment as a
stock control manager. [Id.] The ALJ issued an
unfavorable decision on April 5, 2016. [AR 16-24].
SSA's Five-Step Process for ...