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Lofley v. Berryhill

United States District Court, D. Colorado

March 22, 2018

DAVID LOFLEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Nina Y. Wang United States Magistrate Judge

         Magistrate 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.

         PROCEDURAL HISTORY

         Plaintiff David Lofley (“Plaintiff” or “Mr. Lofley”) protectively filed applications for DIB and SSI on October 8, 2012. See [#9-6 at 250-258].[1] 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].

         Mr. 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].

         When 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.

         Mr. 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 50-51].

         Steven 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].

         The ALJ 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, [2]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.

         The ALJ 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).

         STANDARD OF REVIEW

         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 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 omitted).

         ANALYSIS

         I. The ALJ's Decision

         Mr. 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).

         Additionally, 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 ...


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