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Brake v. Berryhill

United States District Court, D. Colorado

September 11, 2017

WILLIAM R. BRAKE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          Michael E. Hegarty United States Magistrate Judge.

         Plaintiff, 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.

         BACKGROUND

         I. Mr. Brake's Conditions

         Plaintiff, 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.]

         Although 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].

         After 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.[1] [Id.] Mr. Brake consented and underwent surgery in August 2013. [AR 213-15].

         During 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. [Id.]

         On 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.]

         Mr. 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 breath. [Id.]

         II. Procedural History

         Mr. 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 34-35].

         The SSA 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.

         III. Hearing Testimony

         The ALJ 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].

         The ALJ 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].

         Mr. 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].

         In 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 47].

         The ALJ 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. [Id.]

         Finally, 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].

         LEGAL STANDARDS

         I. SSA's Five-Step Process for ...


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