United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge
Judge Nina Y. Wang This action comes before the court
pursuant to Titles II and XVI of the Social Security Act
(“Act”), 42 U.S.C. §§ 401-33 and
1381-83(c) for review of the Acting Commissioner of Social
Security's final decision denying Plaintiff David
Lofley's application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”). Pursuant to the Order of Reference dated
August 21, 2017 [#14], 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 24, 2017
[#1], Plaintiff's Opening Brief, filed June 27, 2017
[#12], Defendant's Response Brief, filed July 20, 2017
[#18], the entire case file, the administrative record, and
applicable case law. For the following reasons, I
respectfully AFFIRM IN PART and REVERSE AND REMAND IN PART
the Commissioner's decision.
David Lofley (“Plaintiff” or “Mr.
Lofley”) protectively filed applications for DIB and
SSI on October 8, 2012. See [#9-6 at
250-258]. Plaintiff alleges he became disabled on
April 16, 2011, at the age of 47, due to complications
stemming from a heart attack, neck and shoulder injuries, and
memory loss. See [#9-6 at 250, 256]. His claims were
initially denied on December 19, 2012, and upon
reconsideration on March 5, 2013. Plaintiff filed a written
request for a hearing on March 25, 2013. [#9-4 at 119, 126,
145]. Originally, Mr. Lofley appeared for a hearing on
September 15, 2014 that was postponed based on
Plaintiff's request. [#9-2 at 41]. Plaintiff and a
non-attorney representative, William Myerholtz, appeared for
a hearing before Administrative Law Judge Carl C. McGhee
(“ALJ”) on November 12, 2014, and for a
supplemental hearing on August 12, 2015. [#9-2 at 31, 43].
Lofley has a high school education and completed four years
of plumbing school. [#9-2 at 46]. During the November
hearing, Plaintiff testified that he is married but has been
separated from his wife for over twelve years. [Id.]
He was living with his in-laws at the time of the hearing.
[Id.] He has worked as a plumber and plumber
supervisor, a pipe fitter, a cook, a dining room attendant, a
manager in food service, and a construction worker.
[Id. at 54-55]. Plaintiff testified that he last
worked in June of 2011, which is when he suffered a heart
attack. [Id. at 46]. Since the heart attack, he is
easily tired and cannot walk as far as before the attack, he
suffers pain in his neck and shoulders, and he began having
seizures, potentially from a compressed nerve, which was
resolved when he had a disc in his neck replaced.
[Id. at 47].
asked what activities exacerbate his pain, Plaintiff
identified “[w]eed eating, cutting the grass, picking
up too much weight at one time and…chaotic
situations.” He testified that the duration of his pain
correlates to his level of stress, and that if he is
“really stressed out [the pain] lasts as long as the
stress lasts.” [Id.] He also testified that he
can stand for approximately four hours if moving around and
can stand in one place for approximately one hour. He can sit
for approximately five hours before he feels
“antsy” and wants to move around. [Id.
at 48]. Plaintiff testified that he can lift approximately
twenty-five pounds, and he carries his baby grandniece, whom
he helps babysit. However, he testified that he is unable to
lift weight over his head and he has difficulty holding onto
objects. [Id.] His balance improved following the
neck surgery, but he testified that he continues to exhibit
mild symptoms such as tremors in his hands. [Id.] In
response to questioning by Mr. Myerholtz, Plaintiff testified
that he could grate and chop vegetables for approximately one
hour before his arms would grow tired and ache; and he
testified that his knee would also ache from standing.
[Id. at 53]. Plaintiff is right-handed.
Lofley additionally suffers from certain mental health
issues. He testified that he gets along okay with other
people, but he “get[s] to the point where I feel like I
need to go because somebody is watching me or they're out
to get me.” [#9-2 at 49]. When asked if he has friends,
Plaintiff testified, “[n]ot really, ” and that he
prefers not to “go out too much in public.”
[Id.] Plaintiff also testified that he has
difficulty completing tasks due to lack of focus, though he
helps with certain household chores such as cleaning dishes,
sweeping, and vacuuming. [Id. at 50]. In response to
questioning by Mr. Myerholtz, Plaintiff testified that of his
health concerns, his ability to work is most impeded by his
mental health issues, and he referenced specifically feelings
of paranoia and auditory hallucinations. [Id. at
Simon testified as a vocational expert (“VE”).
The ALJ queried him whether work exists for a person of
Plaintiff's age with the same educational and work
history, who is limited as follows: lift and/or carry twenty
pounds occasionally and ten pounds frequently; stand and/or
walk for four hours in an eight hour day; sit for four hours
in an eight hour day; occasionally push and pull with his
upper extremities; requires an alternating sit, stand option
every two hours; occasionally climb ramps and stairs; avoid
climbing ladders and scaffolds; frequently balance, stoop,
kneel, and crouch; occasionally crawl and reach waist to
chest with both arms; avoid reaching above shoulder level
with both arms; frequently handle and finger with the right
hand and constantly handle and finger with the left hand, and
constantly feel; tolerate occasional exposure to extreme cold
and heat, occasional exposure to wetness and/or humidity,
occasional exposure to vibration, and occasional exposure to
pulmonary irritants; frequently work around moving mechanical
parts; avoid working at high and exposed sites; can perform
simple, routine, and repetitive tasks and can understand,
remember, and carry out simple instructions; able to adapt to
infrequent changes in the work setting; and can frequently
interact with the public but only occasionally interact with
supervisors and coworkers. [#9-2 at 55-56]. Mr. Simon
testified that such a person could perform none of
Plaintiff's previous jobs nor any other job in the
national economy. [Id. at 56-57].
thereafter spoke with Mr. Lofley at a supplemental hearing
held on August 12, 2015. Plaintiff introduced no new
evidence, but testified that he had been involved in a car
accident following the November 2014 hearing and had
reinjured his neck. [#9-2 at 33-34]. He testified that his
mental health issues remained the same. The ALJ then posed
questions to Nicholas Ferdanza, who testified as the VE. Mr.
Ferdanza identified only cook and pipe fitter as work
Plaintiff had performed in the previous fifteen years.
[Id.] The ALJ then posed a hypothetical to Mr.
Ferdanza that removed several of the physical restrictions
identified in the first hypothetical, and asked if work
exists for a person of Plaintiff's age with the same
educational and work history, who is limited as follows: lift
and/or carry twenty pounds occasionally and ten pounds
frequently; stand and/or walk for four hours in an eight hour
day; sit for four hours in an eight hour day;
frequently push and pull with his upper extremities,
occasionally reach above shoulder
level with both arms, and constantly reach waist to
chest with both arms; constantly handle, finger, and
feel with both hands; frequently climb ramps and
stairs; avoid climbing ladders and scaffolds; frequently
balance, stoop, kneel, and crouch and frequently
crawl; tolerate exposure to extreme cold, and tolerate
occasional exposure to extreme heat, wetness and/or humidity,
vibration, and pulmonary irritants; constantly work
around moving mechanical parts; avoid working at high and
exposed sites; can perform simple, routine, and repetitive
tasks and can understand, remember, and carry out simple
instructions; able to adapt to infrequent changes in the work
setting; and can frequently interact with the public but only
occasionally interact with supervisors and coworkers.
[Id. at 35-36]. The VE testified that such person
could not work as a cook or pipe fitter, but could work as an
electronics worker, for which there are 50, 000 jobs in the
national economy, in small products assembly, for which there
are 100, 000 jobs in the national economy, and ticket taker,
for which there are 45, 000 jobs in the national economy.
denied Mr. Lofley's application in a written decision
issued November 6, 2015, concluding that he was not disabled.
[#9-2 at 10-22]. Plaintiff requested review of the ALJ's
decision, which the Appeals Council denied on January 26,
2017. [#9-2 at 1]. 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 24, 2017. The court has jurisdiction to review the
final decision of the Commissioner. 42 U.S.C. § 405(g).
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 he 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 his 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
The ALJ's Decision
Lofley seeks both SSI and DIB benefits. An individual is
eligible for SSI benefits under the Act if he is financially
eligible, files an application for SSI, and is disabled as
defined in the Act. 42 U.S.C. § 1382. 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. § 1382c(a)(1)(3)(B). The Supplemental Security
Income Program, established by Title XVI of the Social
Security Act, 86 Stat. 1465, as amended, 42 U.S.C. §
1381 et seq., provides for the payment of disability
benefits based solely on an individual's indigent status
and is therefore a need-based program available to claimants
independent of their prior social security contributions.
See Bowen v. City of New York, 476 U.S. 467, 470,
106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). By contrast, the
Social Security Disability Insurance Program established by
Title II of the Social Security Act, 49 Stat. 622, as
amended, 42 U.S.C. § 401 et seq., provides for
the payment of disability benefits only to those who have
previously contributed to the program and who suffer from a
mental or physical disability. See Bowen, 476 U.S.
at 470. 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).
the claimant must prove he was disabled prior to his date
last insured. Flaherty, 515 F.3d at 1069. To receive
either set of benefits, the disabling impairment must last,
or be expected to last, for at least twelve ...