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Hahn v. Berryhill

United States District Court, D. Colorado

February 26, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Nina Y. Wang, United States Magistrate Judge

         This action comes before the court pursuant to Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-33 for review of the Commissioner of Social Security's (“Commissioner”) final decision denying Plaintiff Keith Charles Hahn's application for Disability Insurance Benefits (“DIB”). Pursuant to the Order of Reference dated August 1, 2017 [#20], this civil action was referred to the Magistrate Judge “for all purposes” pursuant to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2(e). The court has carefully considered the Complaint filed March 14, 2017 [#1], Plaintiff's Opening Brief, filed June 26, 2017 [#17], Defendant's Response Brief, filed July 17, 2011 [#18], Plaintiff's Reply Brief, filed July 31, 2017 [#19], the entire case file, the administrative record, and applicable case law. For the following reasons, I respectfully AFFIRM the Commissioner's decision.


         On July 12, 2013, Plaintiff Keith Charles Hahn (“Plaintiff” or “Mr. Hahn”) filed an application for DIB under Title II of the Act. See [#13-5 at 137-138].[1] Plaintiff alleges he became disabled on April 1, 2013, at the age of 44, due to complications stemming from a blood clot. See, e.g., [#13-2 at 13, 36; #13-5 at 137]. His claim was initially denied on March 28, 2014, and he filed a written request for a hearing on May 28, 2014. [#13-4 at 84-86, #13-4 at 94]. On July 27, 2015, Plaintiff and his counsel appeared for a hearing before Administrative Law Judge Kelley Day (“ALJ”).

         Plaintiff lives in the furnished basement in his parents' home. [#13-2 at 40]. He has a high school education and had most recently, and for approximately seven and a half years, worked at Wal-Mart in overnight maintenance. [#13-2 at 33, 35, 52]. Before that, he had worked temporarily for a plastics company, preceded by fourteen years of work in plastic injection molding. [Id. at 35]. In 2008, Plaintiff began taking blood thinning medication for pulmonary embolism, and that testified that his condition “gradually got worse from that point.” [Id. at 36]. Plaintiff testified that he suffers from pain in his feet, ankles, and hips, and he uses custom shoe inserts to help manage the pain, but that the pain caused by standing and walking is ultimately what caused him to quit his job in overnight maintenance. [Id. at 38-39]. Plaintiff also testified to experiencing “unknown problems with both knees over about the last…six months.” [#13-2 at 37]. In addition, Plaintiff suffers from diabetes for which he takes medication, and has been diagnosed with an autism-spectrum developmental disorder. [Id.]

         Plaintiff testified that he enjoys playing railroad simulation games on his desktop computer at home, [#13-2 at 47-48], and typically plays no longer than an hour at a time as he either “decide[s] to quit [and]…maybe watch TV, ” or lie down if he is not feeling well. [Id. at 50]. After about an hour, he feels pain in his hips and sometimes his feet. [Id.] He testified that lying in bed for two to three hours helps to alleviate some of that pain. [Id.] Plaintiff testified that not every day is so bad, and that to attend the administrative hearing he had ridden in a car for forty-five minutes without problem. [Id. at 51]. His parents are the only people he sees regularly, and he sees “a couple of friends a couple of times a year at…various train shows in and around the Denver, Longmont area.” [Id. at 52-53]. When asked if he would go to the shows more often if they were held frequently, he testified that he would not because he “probably couldn't afford the gas after a while driving to and from.” [Id. at 53]. Plaintiff testified that he has no problem interacting with the people at the train shows as they share a common interest with him, but that otherwise he does not “socialize very well.” [Id. at 53-54]. In addition, he testified that he could potentially tour the exhibits at a train show on foot for a full day, “but by the end of the day [he would] be in so much pain, it would take two or three days to…recover.” [Id. at 58]. Nonetheless, he tries to attend for a full day, and if he starts suffering pain he excuses himself from the group and returns home. [Id.] He drives himself. [Id.]

         Plaintiff has always been single and has no children. [#13-2 at 54]. He has a sister who has three daughters, whom Plaintiff sees a couple of times a month. [Id.] He does not babysit or care for them, however, and he testified that he does not currently provide care for his parents, but that “it's getting pretty close to where I may have…to try to start doing some extra stuff.” [Id. at 55]. Plaintiff testified that he goes to bed late and wakes late, and he occasionally has difficulty sleeping due to his pain. [Id. at 59]. He uses the microwave to prepare food for himself, or he joins his parents for a meal in the early afternoon. [Id.]

         Finally, Plaintiff testified as to the presence of open ulcers on his feet and the pain they cause. [#13-2 at 60]. He stated that when working at Wal-Mart, by the end of the night he could hardly walk. [Id.] He continued with the work because he needed the money, and he testified that he would have continued working if he could have. [Id.] In response to the ALJ's questions, Plaintiff testified that he believed he could sit for an hour before his hips and feet started hurting, and that after lying down for a few hours, he could sit upright for two to three hours during an eight-hour day. [Id. at 61]. He testified that his pain, when it occurs, is so intense that it requires all of his focus to ease himself through it. At the time of the hearing, Plaintiff walked with a cane and had no open sores on his feet, but he believed such sores would develop if he were required to walk regularly. [Id. at 64]. He testified that when he quit his job at Wal-Mart, he was experiencing pain at a level of eight or nine on a scale of one to ten, and that six months or more passed before the pain decreased to a manageable level. [Id.]

         Ashley Bryers testified as a vocational expert (“VE”). The ALJ queried her whether work exists for a person with Plaintiff's education, background, and work history, who is limited to sedentary work, who cannot climb ropes, ladders, or scaffolds, who can only occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl, and be exposed to excessive cold, wetness, and humidity. [#13-2 at 67-68]. The VE testified that such a person could work as an address clerk, for which there are 20, 000 jobs in the national economy, as a call-out operator, for which there are 13, 000 jobs in the national economy, or as a microfilm document preparer, for which there are 45, 000 jobs in the national economy. [Id. at 68]. The VE testified that if the hypothetical person were limited to only occasional contact with the public and with coworkers and supervisors, that person could still work as an address clerk or microfilm document preparer. [Id. at 69]. Such person could likewise still perform the work if he used a cane, and if he needed to change positions from sitting to standing every hour, so long as he remained on task. [Id. at 69-70]. Such person would not be competitive if changing positions required him to be off task more than six minutes every hour. [Id. at 70].

         The ALJ denied Mr. Hahn's application in a written decision issued November 24, 2015, concluding that he was not disabled. [#13-2 at 13-22]. Plaintiff requested review of the ALJ's decision, which the Appeals Council denied on January 10, 2017. [#13-2 at 2]. The decision of the ALJ then became the final decision of the Commissioner. 20 C.F.R. § 404.981; Nielson v. Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993) (citation omitted). Plaintiff filed this action on March 14, 2017. The court has jurisdiction to review the final decision of the Commissioner. 42 U.S.C. § 405(g).


         In reviewing the Commissioner's final decision, the court is limited to determining whether the decision adheres to applicable legal standards and is supported by substantial evidence in the record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation omitted); Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007). The court may not reverse an ALJ simply because she may have reached a different result based on the record; the question instead is whether there is substantial evidence showing that the ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). “Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (internal citation omitted). Moreover, the court “may neither reweigh the evidence nor substitute [its] judgment for that of the agency.” White v. Massanari, 271 F.3d 1256, 1260 (10th Cir. 2001), as amended on denial of reh'g (April 5, 2002). See also Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (“The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.”) (internal quotation marks and citation omitted). However, “[e]vidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) (internal citation omitted). The court will not “reweigh the evidence or retry the case, ” but must “meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Flaherty, 515 F.3d at 1070 (internal citation omitted). Nevertheless, “if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993) (internal citation omitted).


         I. The ALJ's Decision

         An individual is eligible for DIB benefits under the Act if he is insured, has not attained retirement age, has filed an application for DIB, and is under a disability as defined in the Act. 42 U.S.C. § 423(a)(1). An individual is determined to be under a disability only if his “physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy….” 42 U.S.C. § 423(d)(2)(A). The disabling impairment must last, or be expected to last, for at least twelve consecutive months. See Barnhart v. Walton, 535 U.S. 212, 214-15 (2002). Additionally, the claimant must prove he was disabled prior to his date last insured. Flaherty, 515 F.3d at 1069.

         The Commissioner has developed a five-step evaluation process for determining whether a claimant is disabled under the Act. 20 C.F.R. § 404.1520(a)(4)(v). See also Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (describing the five steps in detail). “If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.” Williams, 844 F.2d at 750. Step one determines whether the claimant is engaged in substantial gainful activity; if so, disability benefits are denied. Id. Step two considers “whether the claimant has a medically severe impairment or combination of impairments, ” as governed by the Secretary's severity regulations. Id.; see also 20 C.F.R. § 404.1520(e). If the claimant is unable to show that his impairments would have more than a minimal effect on his ability to do basic work activities, he is not eligible for disability benefits. If, however, the claimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three. Williams, 844 F.2d at 750. Step three “determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity, ” pursuant to 20 C.F.R. § 404.1520(d). Id. At step four of the evaluation process, the ALJ must determine a claimant's Residual Functional Capacity (“RFC”), which defines what the claimant is still “functionally capable of doing on a regular and continuing basis, despite his impairments: the claimant's maximum sustained work capability.” Williams, 844 F.2d at 751. The ALJ compares the RFC to the claimant's past relevant work to determine whether the claimant can resume such work. See Barnes v. Colvin, No. 14-1341, 2015 WL 3775669, at *2 (10th Cir. June 18, 2015) (internal quotation marks omitted) (citing Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (noting that the step-four analysis includes three phases: (1) “evaluat[ing] a claimant's physical and mental [RFC]”; (2) “determin[ing] the physical and mental demands of the claimant's past relevant work”; and (3) assessing “whether the claimant has the ability to meet the job demands found in phase two despite the [RFC] found in phase one.”)). “The claimant bears the burden of proof through step four of the analysis.” Neilson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993).

         At step five, the burden shifts to the Commissioner to show that a claimant can perform work that exists in the national economy, taking into account the claimant's RFC, age, education, and work experience. Neilson, 992 F.2d at 1120.

. . . A claimant's RFC to do work is what the claimant is still functionally capable of doing on a regular and continuing basis, despite his impairments: the claimant's maximum sustained work capability. The decision maker first determines the type of work, based on physical exertion (strength) requirements, that the claimant has the RFC to perform. In this context, work existing in the economy is classified as sedentary, light, medium, heavy, and very heavy. To determine the claimant's “RFC category, ” the decision maker assesses a claimant's physical abilities ...

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