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Deherrera v. Berryhill

United States District Court, D. Colorado

September 15, 2017

NANCY A. BERRYHILL, [*] Acting Commissioner of Social Security Defendant.


          R. Brooke Jackson United States District Judge

         This matter is before the Court on review of the Social Security Administration (“SSA”) Commissioner's decision denying claimant Justin J. DeHerrera's application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. Jurisdiction is proper under 42 U.S.C. § 405(g). For the reasons explained below, the Court reverses and remands the Commissioner's decision.


         This appeal is based upon the administrative record and the parties' briefs. In reviewing a final decision by the Commissioner, the District Court examines the record and determines whether it contains substantial evidence to support the Commissioner's decision and whether the Commissioner applied the correct legal standards. Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996). A decision is not based on substantial evidence if it is “overwhelmed by other evidence in the record.” Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988). Substantial evidence requires “more than a scintilla, but less than a preponderance.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Evidence is not substantial if it “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Reversal may also be appropriate if the Commissioner applies an incorrect legal standard or fails to demonstrate that the correct legal standards have been followed. Winfrey, 92 F.3d at 1019.


         Mr. DeHererra was born in 1976 and is now 40 years old. See R. 25. He has a high school education. R. 60. He has worked as a day laborer, construction laborer, truss laborer, restaurant dishwasher, and golf course laborer. R. 174.

         In March 2009 Mr. DeHerrera was in a car accident. R. 220, 796. He sustained right shoulder and elbow injuries, along with a neck injury. See R. 796. An MRI following the accident showed a herniated disc. R. 493, 501-502. Since the accident Mr. DeHerrera's resulting neck pain has been treated intermittently with epidural injections. See R. 217-221, 797-801. His neck pain increasingly resulted in pain and numbness in his shoulders and arms, and occasionally seizure-like symptoms triggered by moving his neck. See, e.g., R. 779-81.

         Additionally, Mr. DeHerrera fractured a toe on his right foot in 2012, which affected his gait. See R. 324, 796. He has used physical therapy intermittently to address the resulting gait issues. See, e.g., R. 466-77. In 2014 a cut on his right hand became infected and required surgical debridement. R. 749, 767-68. Since the surgery, Mr. DeHerrera has had difficulty using and closing his right hand. R. 45, 202.

         Mr. DeHerrera also suffers from depression. See, e.g., R. 202. He has suffered from mental problems since he was 14, and his depression has recently become more severe. R. 18.In 2014 he participated in group therapy sessions for three months, and had one individual therapy session. R. 645-54.

         A. Procedural History.

         Mr. DeHerrera filed a claim for disability insurance benefits on February 22, 2013 and supplemental security income benefits on January 15, 2014. See R. 14, 34, 146. Mr. DeHerrera alleged disability beginning March 16, 2009. R. 14. His claims for disability benefits were denied on January 17, 2014. R. 66-69. Mr. DeHerrera then requested a hearing, which was held before Administrative Law Judge (“ALJ”) Earl W. Shaffer on April 16, 2015. R. 32. The ALJ issued a decision denying benefits on May 5, 2015. R. 11-13. The Appeals Council denied Mr. DeHerrera's Request for Review on August 2, 2016, rendering the ALJ's determination the final decision of the Commissioner for purposes of judicial review. R. 1-3. Mr. DeHerrera filed a timely appeal in this Court.

         B. The ALJ's Decision.

         The ALJ issued an unfavorable decision after evaluating the evidence according to the SSA's standard five-step process. R. 14-26. First, the ALJ found that Mr. DeHerrera had not engaged in substantial gainful activity since his alleged onset date of March 16, 2009. R. 16. At step two, the ALJ found that Mr. DeHerrera had the severe impairment of degenerative disc disease of the cervical spine. Id. The ALJ found that the following alleged conditions or impairments either did not represent medically determinable impairments or were nonsevere: seizures/blurred vision/“vertigo cramps;” a broken metatarsal bone in the right foot; hands/wrist/right arm issues; knee issues; obesity; and mental impairments, including posttraumatic stress disorder, major depression and cognitive deficits. R. 17-19. At step three, the ALJ concluded that Mr. DeHerrera did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 20.

         The ALJ then found that Mr. DeHerrera retained the residual functional capacity (“RFC”) to perform light work at the unskilled level, except that Mr. DeHerrera is able to stand, walk, and sit for six hours in an eight-hour day. R. 20. The ALJ noted additionally Mr. DeHerrera should limit pushing and pulling with the upper and lower extremities; should not climb ladders, ropes, or scaffolds; should not crawl; should limit his overhead reaching; and should avoid exposure to extreme cold, vibration, unprotected heights and major industrial machinery. Id.

         At step four, the ALJ determined that Mr. DeHerrera is unable to perform any of his past relevant work. R. 25. At step five, the ALJ determined that “there are jobs that exist in significant numbers that the claimant can perform.” R. 25-26. As a result, the ALJ concluded that Mr. DeHerrera was not disabled. R. 26


         Mr. DeHerrera contends that the ALJ lacked valid reasons for rejecting two of Mr. DeHerrera's consultative doctors' opinions at the step three RFC determination phase: Dr. Rodriguez's opinion of mental impairments and Dr. Campbell's opinion of physical impairments.[1] The Court will address each argument in turn.

         A. Dr. ...

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