United States District Court, D. Colorado
ORDER AFFIRMING THE DECISION OF THE ADMINISTRATIVE
LAW JUDGE DENYING DISABILITY INSURANCE BENEFITS
CHRISTINE M. ARGUELLO United States District Judge.
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
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.)
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
STANDARD OF REVIEW
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
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)
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.
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
“[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.
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).
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.
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.)
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
[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.
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.)
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.)
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.
MR. ROMERO'S RFC
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.
“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
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). 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 ...