Schultz v. Colvin

          OPINION AND ORDER

          MICHAEL J. WATANABE, UNITED STATES MAGISTRATE JUDGE.

         The government determined that Plaintiff is not disabled for purposes of the Social Security Act. (AR^[1] 30). Plaintiff has asked this Court to review that decision. The Court has jurisdiction under 42 U.S.C. § 405(g), and both parties have agreed to have this case decided by a U.S. Magistrate Judge under 28 U.S.C. § 636(c). (Docket No. 13).

         Standard of Review

         In Social Security appeals, the Court reviews the decision of the administrative law judge (“ALJ”) to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied. See Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007). “Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.” Raymond v. Astrue, 621 F.3d 1269, 1271-72 (10th Cir. 2009) (internal quotation marks omitted). The Court “should, indeed must, exercise common sense” and “cannot insist on technical perfection.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Court cannot reweigh the evidence or its credibility. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

         Discussion

         The ALJ determined that Plaintiff has the following residual functional capacity (“RFC”), as is relevant here:

. . . [Plaintiff] has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that he can lift and carry a maximum of 10 pounds frequently and 10 pounds occasionally, sit for six hours total in an eight-hour workday, and stand and/or walk for six hours total in an eight-hour workday. The claimant can never climb ladders, ropes, or scaffolds; can occasionally climb ramps and stairs, stoop, and crawl; and can frequently balance. He can frequently reach in all directions bilaterally.

(AR 23). The ALJ explained that “[d]ue to his cervical spine surgeries, lumbar spine condition, and right clavicle surgery the claimant is limited to lifting 10 pounds occasionally and 10 pounds frequently, because lifting more than this amount would likely aggravate his neck pain and upper extremity symptoms.” (AR 25). The ALJ further explained: “physical examinations have shown mild weakness in his upper extremities, which justifies a limitation to lifting 10 pounds, although on occasion the claimant demonstrated full strength in his upper extremities.” (AR 25). At the June 25, 2015 hearing, the ALJ asked Deborah Christensen, the Vocational Expert (“VE”) whether Plaintiff could perform his past work and also about potential jobs he could perform. (AR 68-70). The VE testified that, based on the above limitations, Plaintiff could not perform his past work. (AR 69). The ALJ then had the following exchange with the VE:

ALJ: Okay. So for someone closely approaching advanced age with more than a high school education would there be other jobs that would be possible in the light category?

VE: Yes, there would. All righty. Okay, one example would be that of a small products assembler. That DOT code number is 706.684-022. It is light, SVP 2 and these jobs occur nationally at a rate of approximately 116, 000 and regionally or within the state of Colorado at a rate of approximately 1, 000.

Well, let's see here, one moment, and you know, Your Honor, I believe that's my only example.

ALJ: Okay. And would there be skills that would transfer to sedentary work within those limitations?

VE: No.

ALJ: And would the small product assembler be possible if the reaching in all directions were occasional ...