United States District Court, D. Colorado
ORDER AFFIRMING DENIAL OF BENEFITS
Brooke Jackson United States District Judge.
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
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.
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.
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.
The ALJ's Decision.
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.
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.
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
Dr. James ...