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Dugwyler v. Berryhill

United States District Court, D. Colorado

June 14, 2018

JERRY A. DUGWYLER Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          LEWIS T. BABCOCK, JUDGE

         Plaintiff, Jerry A. Dugwyler, appeals from the Social Security Administration (“SSA”) Commissioner's final decision denying his application for disability insurance benefits, filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433. Jurisdiction is proper under 42 U.S.C. § 405(g). Oral argument would not materially assist me in my determination. After consideration of the parties' briefs, as well as the administrative record, I AFFIRM the Commissioner's order.

         I. STATEMENT OF THE CASE

         Plaintiff seeks judicial review of the SSA Commissioner's decision that he was not disabled, as defined by the Social Security Act, during the closed period from January 25, 2010 through April 1, 2015. [Administrative Record “AR” 1135-59]

         Plaintiff filed an application seeking disability insurance benefits in June of 2011. [AR 188] After his application was initially denied, an Administrative Law Judge (“ALJ”) held an evidentiary hearing, and issued a written ruling dated June 27, 2014. [AR 14-31] The ALJ ruled that Plaintiff was not disabled because he was capable of performing work that existed in the national economy (Step Five). [AR 29] The ALJ went on to determine that beginning on November 26, 2013, no jobs existed in the national economy that Plaintiff could perform and, as a result, Plaintiff became disabled on that date. [AR 30]

         Plaintiff appealed that decision to this court and, on October 30, 2015, Judge Christine M. Arguello reversed. Dugwyler v. Colvin, No. 15-CV-00116-CMA, 2015 WL 13215658 (D. Colo. Oct. 30, 2015)(unpublished. [AR 1262-89] Judge Arguello remanded the Commissioner's order on the basis that the ALJ erred when weighing the opinions of the physician opinions in the record. Specifically, she found that the ALJ erred in “improperly considering the credibility of the [Plaintiff's] statements in assessing the opinions of treating sources[, ] and he also erred in deciding the comparative or relative weight to which he should give the treating sources.” Id.

         On remand, the same ALJ held evidentiary hearings on June 7 and August 23, 2016, and issued a second written ruling dated December 28, 2016. [AR 1135-59-31] The ALJ again ruled that Plaintiff was not disabled because during the alleged closed period, from January 25, 2010 through April 1, 2015, Plaintiff was capable of performing work that existed in the national economy (Step Five). [AR 1157] Plaintiff did not file written exceptions, and the SSA Appeals Council elected to not review the ALJ's determination, making the denial final for the purpose of judicial review. [AR 1323-28] Plaintiff timely filed his complaint with this court seeking review of the Commissioner's decision.

         II. FACTS

         Plaintiff was born on January 19, 1960; he has a B.A. in Economics and has completed a year of seminary graduate work. [AR 298, 310] Plaintiff has been employed as a maintenance supervisor, a corporate safety and compliance officer, a transportation manager, a telemarketer, and a truck driver. [AR 297] Plaintiff initially asserted that he became disabled in January of 2009 due to his coronary artery disease, social anxiety and depression. [AR 188-89, 298, 30] Plaintiff later amended his onset date to January 25, 2010, and Plaintiff admits that he returned to work on April 1, 2015. [AR 1176, 1187, 1135] Thus, it is undisputed that Plaintiff must prove he was disabled during the closed period of January 25, 2010 through April 1, 2015. Plaintiff's medical records and history are set forth in Dugwyler v. Colvin, supra, 2015 WL 13215658. [AR 1262-89] Again at issue here is the ALJ's assessment of the various medical opinions in the record.

         III. LAW

         A five-step sequential evaluation process is used to determine whether a claimant is disabled under Title II of the Social Security Act, which is generally defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(B); see also Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). Step One is whether the claimant is presently engaged in substantial gainful activity. If he is, disability benefits are denied. See 20 C.F.R. § 404.1520. Step Two is a determination of whether the claimant has a medically severe impairment or combination of impairments as governed by 20 C.F.R. § 404.1520(c). If the claimant is unable to show that his impairment(s) would have more than a minimal effect on his ability to do basic work activities, he is not eligible for disability benefits. Step Three determines whether the impairment is equivalent to one of a number of listed impairments deemed to be so severe as to preclude substantial gainful employment. See 20 C.F.R. § 404.1520(d). If the impairment is not listed, he is not presumed to be conclusively disabled. Step Four then requires the claimant to show that his impairment(s) and assessed residual functional capacity (“RFC”) prevent him from performing work that he has performed in the past. If the claimant is able to perform his previous work, the claimant is not disabled. See 20 C.F.R. § 404.1520 (e)&(f). Finally, if the claimant establishes a prima facie case of disability based on the four steps as discussed, the analysis proceeds to Step Five where the SSA Commissioner has the burden to demonstrate that the claimant has the RFC to perform other work in the national economy in view of his age, education and work experience. See 20 C.F.R. § 404.1520(g).

         IV. ALJ's RULING

         On remand, the ALJ ruled as follows:

After careful consideration of all the evidence, I conclude the claimant was not under a disability within the meaning of the Social Security Act during the alleged closed period of disability from January 25, 2010, to April 1, 2015. The claimant is not disabled from January 25, 2010, to January 24, 2015. Beginning January 25, 2015 (the claimant's 55th birthday), the Medical-Vocational rules would have supported a finding of disability. However, the claimant has conceded medical improvement and a return to substantial gainful work activity less than 3 months later, on April 1, 2015. Thus, that period (from January 25, 2015 to April 1, 2015) is less than 12 months after the disability onset date. Consequently, disability cannot be established as that term is defined under Social Security law in terms of eligibility for Social Security disability payments. [AR 1136]

         In so ruling, the ALJ found as follows. First, that Plaintiff had not engaged in substantial gainful activity during the closed period (from January 25, 2010 through April 1, 2015)(Step One). [AR 1137] The ALJ further determined that during the closed period, Plaintiff had the following medically determinable and severe impairments: 1) dysthymic disorder and/or depressive disorder; 2) anxiety disorder; 3) obesity; 4) peripheral neuropathy; 5) obstructive sleep apnea; and 6) coronary artery disease, with cor pulmonale (Step Two), but that these impairments did not meet or medically equal a listed impairment deemed to be so severe as to preclude substantial gainful employment (Step Three). [AR 1138]

         The ALJ then determined that during the closed period of disability, Plaintiff's physical RFC was light work, as defined in 20 CFR 404.1567(b), in that he was able to lift 20 pounds occasionally and 10 pounds frequently and, during an 8-hour workday, he was able to stand and/or walk 4 hours and sit for 6 hours. He was limited, however, in that: he was able climb ramps and stairs occasionally; he should avoid climbing ladders, ropes, and scaffolds; and he should avoid all exposure to protected heights. He could frequently balance, bend, stoop, crouch, kneel, and crawl. Plaintiff's mental RFC was assessed as follows: he was able to use judgment in making work decisions; respond appropriately to supervision, coworkers and work situations; and deal with changes in a routine work setting, but he should not perform any assembly-line work and could not engage in work requiring intense, sustained concentration. Plaintiff was also only able to interact with the public less than occasionally, was able to manage social situations that were not frequent or prolonged, and was capable of work that was of limited complexity that required only up to six months to learn. [AR 1140-41]

         Based on this RFC assessment, the ALJ determined that Plaintiff could not perform his past relevant work during the closed period of disability (Step Four). [AR 1156] However, the ALJ found that there were jobs existing in significant numbers in the national economy that Plaintiff could perform during the closed period of disability (Step Five). [AR 1157] Therefore, the ALJ found that during the closed period of disability (from ...


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