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Romero v. Berryhill

United States District Court, D. Colorado

July 19, 2018

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.


          CHRISTINE M. ARGUELLO United States District Judge.

         This matter is before the Court on Plaintiff Eugene Romero's appeal of the Commissioner's decision denying his claim for disability insurance benefits (DIB). (Doc. # 14.) Exercising jurisdiction under 42 U.S.C. § 405(g), this Court affirms the decision of the Administrative Law Judge (ALJ).

         I. BACKGROUND

         In May 2009, while working as an electrician, Mr. Romero sustained injuries to his back, face, and hands in a flash explosion. (Doc. # 10-2 at 39.) In the ensuing years, Mr. Romero underwent tangential excision and debridement of his hands, bilateral skin grafts, release of scar contractures, and regular physical therapy. (Doc. ## 10-7 at 251-323; 10-8 at 324-333; 10-9 at 344-414; 10-10 at 415-99; 10-11 at 500-76; 10-12 at 577-651.) The pain to Mr. Romero's back appeared more gradually, primarily affecting his lower lumbar spine; Mr. Romero underwent a L4 laminectomy in late 2012 and began physical therapy in early 2013. (Id. at 46-49.)

         In July 2013, as a result of these injuries, Mr. Romero applied for DIB, alleging disability beginning with the explosion in May 2009. (Id. at 39.) On August 31, 2015, following a hearing, an ALJ denied Mr. Romero's claim, ultimately finding that he was not under a “disability” as defined in Title II of the Social Security Act. (Id. at 39-53.) Mr. Romero appealed, and the Appeals Council denied his request for review, making the ALJ's decision the final decision of the Commissioner. (Id. at 22-26.)


         Judicial review of the ALJ's final decision is limited in scope by 42 U.S.C. § 405(g). “The court may not reweigh the evidence or try the issues de novo or substitute its judgment for that of the [ALJ].” Trimiar, 966 F.2d at 1329. The district court may not reverse an ALJ simply because it may have reached a different result based on the record. Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).

         Instead, this Court's limited role is to determine whether the ALJ's decision is supported by substantial evidence. Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003); Trimiar v. Sullivan, 966 F.2d 1326, 1328-29 (10th Cir. 1992). “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). A finding of “‘no substantial evidence' will be found only where there is a ‘conspicuous absence of credible choices' or ‘no contrary medical evidence.'” Trimiar, 966 F.2d at 1329. Evidence is not substantial if it is overwhelmed by other evidence or if it is actually mere conclusion. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). Moreover, the record must show the ALJ considered all the evidence, but he need only discuss the evidence supporting his decision, along with any “uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects.” Mays v. Colvin, 739 F.3d 569, 576 (10th Cir. 2014); Lykins v. Colvin, 657 Fed.Appx. 726, 727 (10th Cir. 2016)

         Failure to apply the correct legal standard is also grounds for reversal. Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984). This Court must therefore determine whether the ALJ's action is consistent with the Social Security Act and the relevant regulations and case law. Ellison, 929 F.2d at 536.

         III. LAW

         “Disability” is defined in the Social Security Act as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . .” 42 U.S.C. § 423(d)(1)(A). The Act further provides that

“[a]n individual shall be 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 work which exists in the national economy. . . .”

42 U.S.C. § 423(d)(2)(A). The claimant bears the burden of proving that he is disabled. 20 C.F.R. § 404.1512(a); Wall v. Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009).

         The Commissioner has established a five-step sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R. § 416.920(a)(4). The steps of the evaluation are whether: (1) the claimant is currently working; (2) the claimant has a severe impairment; (3) the claimant's impairment meets an impairment listed in Appendix 1 of the relevant regulation; (4) the impairment precludes the claimant from doing her past relevant work; and (5) the impairment precludes the claimant from doing any work. See 20 CFR 404.1512(g), 404.1560(c), 416.912(g), and 416.960(c); Pisciotta v. Astrue, 500 F.3d 1074, 1076 (10th Cir. 2007). A finding that a claimant is or is not disabled at any point in the five-step evaluation process is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).

         In conducting this evaluation, the ALJ must identify the weight accorded to the opinion of medical consultants and examiners and also explain the basis for said weight. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003); Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004).

         IV. ANALYSIS

         In this case, the ALJ proceeded through the first three steps in the sequential process. The ALJ concluded that Mr. Romero (1) had “not engaged in substantial gainful activity during the period from his alleged onset date of May 5, 2009 through his date last insured of December 31, 2013”; (2) suffered from “the following severe impairments: degenerative disc disease of the lumbar spine with neuropathy of the lower extremities and burns of the bilateral hands”; and (3) did not have an “impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments.” (Doc. # 10-2 at 41-43.)

         Before addressing the fourth step, the ALJ assessed Mr. Romero's residual functional capacity (RFC) and concluded that Mr. Romero had the RFC to perform “light work as defined in 20 CFR 404.1567(b).” (Id. at 43.) Light work requires occasional lifting of up to twenty pounds and frequent lifting of up to ten pounds. Harris v. Sec'y of Health & Human Servs., 821 F.2d 541, 544 (10th Cir. 1987) (Id. at 43.) The ALJ also clarified that:

[Mr. Romero] could perform occasionally bending, squatting, and kneeling. [He] could not work with ladders or scaffolds or in hazardous work areas. He could occasionally use foot or leg controls. He could perform frequent but not constant, gripping or grasping with force. He also could not work around temperature extremes.

         (Id.) At the fourth step, the ALJ determined Mr. Romero was “capable of performing past relevant work as a customer service clerk . . . [because] [that] work did not require the performance of work-related activities precluded by [Mr. Romero's RFC].” (Id. at 51-52.)

         The ALJ also made an alternative finding at the fifth step of the evaluation process. (Id. at 52-53.) He concluded that “considering the [Mr. Romero's] age, education, work experience, and [RFC], ” there are jobs that exist in significant numbers in the national economy that Mr. Romero can perform, including production assembly, storage facility rental clerk, and parking lot attendant. (Id. at 53.)

         On appeal, Mr. Romero contends that the ALJ's RFC determination is not supported by substantial evidence and the ALJ did not meet his burden at step five of the evaluation process. The Court addresses each of these contentions in turn.

         A. MR. ROMERO'S RFC

         1. Legal Principles

         “Residual functional capacity” is defined as what the claimant is still “functionally capable of doing on a regular and continuing basis, despite his impairments; the claimant's maximum sustained work capability.” Williams, 844 F.2d at 751; Valdez v. Apfel, 102 F.Supp.2d 1203, 1205 (D. Colo. 2000). The decision maker first determines the type of work, based on physical exertion (strength) requirements, that the claimant has the RFC to perform. Williams, 844 F.2d at 751-52. The “type of work” is classified as either sedentary, light, medium, heavy, or very heavy. Id. To then determine the claimant's “RFC category, ” the ALJ takes into account the claimant's exertional limitations (i.e., limitations in meeting the strength requirements of work). Id.

         Importantly, “the ALJ, not a physician, is charged with determining a claimant's RFC from the medical record.” Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012). And the ALJ, not this Court, resolves conflicting medical opinions. See Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007); Zoltanski v. FAA, 372 F.3d 1195, 1200.

         Using a two-step evaluation process, the ALJ must also weigh the claimant's own description or statements about his physical or mental impairments, i.e. his symptoms. SSR 96-7p (S.S.A. July 2, 1996).[1] First, the ALJ must consider whether there is an underlying medically determinable physical impairment that could reasonably be expected to produce the claimant's pain or other symptoms. Id. Second, the ALJ evaluates whether the claimant's complaints regarding the intensity, persistence, and limiting effects of his symptoms are consistent with and supported by the objective medical evidence in the record as a whole. Id.; 20 C.F.R. § 404.1529(c)(4). Symptom assessment is “peculiarly the province of the ...

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