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Romero v. Berryhill

United States District Court, D. Colorado

April 30, 2018

THOMAS ROMERO, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER AFFIRMING DENIAL OF BENEFITS

          R. Brooke Jackson United States District Judge.

         This matter is before the Court on review of the Social Security Administration (“SSA”) Commissioner's decision denying claimant Thomas Romero'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 AFFIRMS the Commissioner's decision.

         STANDARD OF REVIEW

         This 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.

         BACKGROUND

         Thomas Romero was born in 1967 and is currently 50 years old. R. 229. He lives in Alamosa, Colorado. R. 621. In the past, Mr. Romero has worked as a heavy truck driver, a tractor trailer driver, and as an automobile sales person. R. 545. He filed for disability in 2013, asserting that in August 2011 his health deteriorated to the extent that he was unable to work when he found out that his wife was having an affair. R. 34-35. Mr. Romero eventually returned to work on April 20, 2014. R. 33. As such, Mr. Romero seeks benefits for a closed period from August 1, 2011 through April 20, 2014. Id. Mr. Romero claims that he suffered from the following disabling impairments during the closed period: affective disorder; personality disorder; anxiety; a wrist impairment; a sleep disorder; chest pain; problems with his lumbar and cervical spine; and seizures. R. 15.

         A. Procedural History.

         On March 26, 2013, Mr. Romero filed applications for disability insurance benefits and supplemental security income. R. 533. After a hearing, Administrative Law Judge (“ALJ”) William Musseman issued an unfavorable decision in December 2014. R. 12-24. Mr. Romero filed an appeal with this Court, and his claim was remanded for further proceedings. R. 591-96. The same ALJ conducted a second hearing in June 2016 and again issued an unfavorable decision in August 2016. R. 554-63 (administrative hearing transcript), 533-47 (ALJ decision). The Appeals Council denied Mr. Romero's request for review of the ALJ's second decision, rendering the ALJ's determination the final decision of the Commissioner for purposes of judicial review. R. 524-27. Mr. Romero then filed a timely appeal in this Court.

         B. The ALJ's Decision.

         The ALJ issued an unfavorable decision after evaluating the evidence according to the SSA's standard five-step process. R. 533-547. First, the ALJ found that Mr. Romero did not engage in substantial gainful activity during the closed period of August 1, 2011 through April 20, 2014. R. 537. At step two, the ALJ found that Mr. Romero had the following severe impairments: affective disorder, anxiety, personality disorder, and a wrist impairment. Id. The ALJ also found that Mr. Romero's other claimed impairments-sleep disorder, chest pain, seizures, and problems with his lumbar and cervical spine-were non-severe. Id. At step three the ALJ found that none of Mr. Romero's impairments, either individually or in combination, met a Listing. R. 538.

         The ALJ then found that during the closed period Mr. Romero had the residual functional capacity (“RFC”) to perform the full range of medium work except that he “is limited to no complex tasks defined as SVP 2 or less, unskilled work; no dealing with the general public, [can have only] occasional dealing with coworkers and minimal supervision.” R. 541. At step four, the ALJ found that during the closed period Mr. Romero could not have performed any of his past relevant work as a heavy truck driver, tractor trailer driver, or automobile sales person. R. 545. However, at step five the ALJ found that during the closed period there were jobs that existed in significant numbers in the national economy that Mr. Romero could have performed, and that therefore Mr. Romero had not been under a disability. R. 546.

         DISCUSSION

         Mr. Romero raises two issues on appeal. First, he argues that the ALJ erred in his treatment of Dr. James Grant's opinion regarding Mr. Romero's mental limitations. ECF No. 15 at iii. Second, Mr. Romero argues that the ALJ erred by giving more weight to Dr. MaryAnn Wharry's opinion regarding Mr. Romero's limitations than she gave to Dr. Grant's opinion. Id. Each argument will be considered in turn.

         A. Dr. James ...


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