United States District Court, D. Colorado
JUSTIN J. DEHERRERA Plaintiff,
NANCY A. BERRYHILL, [*] Acting Commissioner of Social Security Defendant.
Brooke Jackson United States District Judge
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.
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.
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.
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.
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,
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.
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
The ALJ's Decision.
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.
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.
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
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. The Court will address each argument in