United States District Court, D. Colorado
Brooke Jackson United States District Judge
matter is before the Court on review of the Social Security
Administration (“SSA”) Commissioner's
decision denying claimant Bradley Dilts's application for
disability insurance benefits (“DIB”) under Title
XVI of the Social Security Act. Jurisdiction is proper under
42 U.S.C. § 405(g). For the reasons below, the Court
reverses and remands the Commissioner's decision.
person is disabled within the meaning of the Social Security
Act only if his physical and /or mental impairments preclude
him from performing both his previous work and any other
“substantial gainful work which exists in the national
economy.” 42 U.S.C. §432(d)(2). To be disabling, a
claimant's conditions must be so limiting as to preclude
any substantial gainful work for at least twelve consecutive
months. See Kelly v. Chater, 62 F.3d 335, 338 (10th
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). The District Court's determination
of whether the ALJ's ruling is supported by substantial
evidence “must be based upon the record taken as a
whole.” Washington v. Shalal, 37 F.3d 1437,
1439 (10th Cir.). 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
Dilts worked as a concrete supervisor, a concrete pointer,
and a waterproofing and caulking machine operator. R.36. He
was 52 years old on the date of the ALJ's decision, R.
36, which the regulations define as “closely
approaching advanced age.” 20 CFR § 404.1563(d).
Mr. Dilts contends that beginning in February 2014, pain in
his neck and back arising from cervical and lumbar disc
degeneration and issues with a damaged shoulder and numb hand
has prevented him from engaging in substantial gainful
medical evidence before the ALJ showed that in March 2014,
Mr. Dilts first complained of neck, back, and shoulder pain
to his primary care provider. R. 318. Over the next two and
half years, Mr. Dilts underwent multiple types of diagnostic
imaging and tried various treatments including chiropractic
care, R. 251, physical therapy, R. 273, a steroid injection
in his shoulder, R. 350, surgery on his shoulder, R.352, and
two surgeries on his neck, R. 484-506, 610-12, 640. Mr. Dilts
testified that despite these treatments, his conditions have
worsened since 2013, and that he continued to experience pain
and a lack of mobility that prevented him from working
consistently in this time. R. 52-63.
Dilts filed his claim for disability on January 7, 2015
alleging the following conditions: neck pain, compressed
discs, a numb hand, neuropathy, an upcoming neck surgery,
right arm rotator cuff issues, previous shoulder surgery, a
damaged shoulder, and issues with his lower back. R. 94-95.
The disability adjudicator determined that though Mr.
Dilts's conditions caused pain and fatigue and limited
his ability to perform work, they did not prevent him from
performing lighter work. R. 104. Accordingly, his claim was
denied on March 2, 2015. Following the denial of his claim,
Mr. Dilts timely requested a hearing by the Administrative
Law Judge (ALJ). R. 74-75. On October 17, 2017 Mr. Dilts
appeared and testified before ALJ Jennifer B. Millington in
Denver, Colorado. R. 29-37. An impartial vocational expert,
Cynthia Ann Bartmann, also appeared at the hearing. R. 29.
After the hearing, Mr. Dilts amended the alleged date of
onset of his disability from March 5, 2013 to February 18,
2014. R. 29.
The ALJ's Decision.
issued a decision denying benefits after evaluating the
evidence according to the Social Security
Administration's standard five-step process. See
20 C.F.R. § 416.920; see also Allen v.
Barnhart, 357 F.3d 1140, 1142 (10th Cir.2004). First,
she found that Mr. Dilts had not engaged in substantial
gainful activity from his amended alleged onset date of
February 18, 2014 through his date last insured was December
31, 2016. R. 31. At step two, the ALJ found that Mr. Dilts
had the following severe impairments: degenerative disc
disease of the lumbar spine; degenerative disc disease of the
cervical spine, status post cervical fusion; and obesity.
R.31. Mr. Dilts also alleged disability based on a left
shoulder injury, testifying that he had difficulty reaching
overhead. R.31. The ALJ found that his July 2014 shoulder
surgery was effective in addressing his torn shoulder and
that the pain in his neck and arms appear to relate to his
ongoing cervical spine condition instead. As a result, she
concluded that his left shoulder injury was not a severe
impairment. R. 32. At step three, the ALJ found that Mr.
Dilts did not have an impairment or combination of
impairments that met or medically equaled the severity of one
of the listed impairments in 20 C.F.R. Part 404, Subpart P,
four, the ALJ found that Mr. Dilts had the residual
functional capacity (RFC) to perform light work except he
could only lift or carry a maximum of 10 pounds. Further, for
postural limitations, the ALJ found that Mr. Dilts could
occasionally climb ramps and stairs, climb ladders, ropes or
scaffolds, balance, stoop, kneel, crouch, or crawl. R.32. She
did not find manipulative limitations (limitations in
reaching, handling, or fingering). The ALJ concluded that Mr.
Dilts is unable to perform any past relevant work. R. 35-36.
At step five, the ALJ determined that there are jobs that
exist in significant numbers in the national economy that Mr.
Dilts can perform. A vocational expert testified that a
person who could do light work activities but lift a maximum
of 10 pounds (instead of the 20 pounds normally associated
with light work) and who could occasionally engage in
postural activities would be able to perform the requirements
of the following occupations: small parts assembler, with 50,
000 jobs in the United States; production assembler, with 25,
000 jobs in the United State; and bakery conveyor with 30,
000 jobs in the United States. R. 36. As a result, the ALJ
concluded that Mr. Dilts was not disabled. R. 37.
Dilts contends that the ALJ erred in three ways. First, Mr.
Dilts argues that the ALJ failed to properly evaluate the
medical evidence and medical source opinions in determining
the RFC. He takes issue with the limited weight given to Mr.
Newman's Med-9 form and the finding of no manipulative
limitations. Second, Mr. Dilts argues that the ALJ failed to
evaluate Mr. Dilts's subjective complaints of disabling
pain as required by law in determining that he had an RFC to
perform a range of light work. He contends that his limited
daily activities and persistence in finding relief from his
pain lend credibility to his testimony that he needs to lie
down often during the day and is not able to perform postural
activities. Third, he contends that the ALJ reached a
conclusion at step five that is unsupported by substantial
evidence - an argument that is an extension of arguments one
and two. ECF No. 14 at 16. I agree with Mr. Dilts's
second argument. Although plaintiff requests a directed award
of benefits, I find this case does not represent an
appropriate circumstance for the exercise of my discretion in
that regard, see Nielson v. Sullivan, 992
F.2d 1118, 1122 (10th Cir. 1993), and remand the case.
Evaluation of the Medical Evidence and Source Opinions in
Limited Weight Given to Mr. Newman's Med-9 Form.
Dilts argues that it was not proper for the ALJ to give
Physician Assistant Newman's opinion limited weight on
the basis that he “was not an acceptable medical
source.” R. 34. In August 2014, Mr. Newman completed a
Colorado Department of Human Services Med-9 form in which he
opined that Mr. Dilts would be disabled for at least 12
months due to chronic cervicalgia. R. 353. The ALJ
“gave little weight” to Mr. Newman's
statements because “it addresses a different definition
of disability than that of the Agency. In addition, Mr.
Newman is not an acceptable medical source and ...