Gallegos v. Berryhill

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the Complaint and Petition to Review [Docket No. 1] filed by plaintiff Neal H. Gallegos on March 10, 2017. Plaintiff seeks review of the final decision of defendant Nancy A. Berryhill (the “Commissioner”) denying his claim for disability insurance benefits under Title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 401-433, and for supplemental security income under Title XVI of the Act, 41 U.S.C. §§ 1381-1383c. The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. § 405(g).^[1]

         I. BACKGROUND

         On February 26, 2014, plaintiff applied for disability insurance benefits under Title II of the Act and supplemental security income under Title XVI of the Act. R. at 130. Plaintiff alleged that he was disabled as of July 29, 2013. Id. After an initial administrative denial of his claim, plaintiff received a hearing before an Administrative Law Judge (“ALJ”) on December 15, 2015. Id. On February 18, 2016, the ALJ issued a decision denying plaintiff's claim. R. at 140. The ALJ found that plaintiff had the following severe impairments: diabetes mellitus, obesity, and status-post surgical correction of a left lower extremity fracture. R. at 132. The ALJ concluded that these impairments, alone or in combination, did not meet one of the regulations' listed impairments. R. at 134. The ALJ ruled that plaintiff had the residual functional capacity (“RFC”) to

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant has additional limitations. He cannot kneel, crawl, or climb ladders or scaffolds or work at unprotected heights or with dangerous, unprotected machinery. He can occasionally crouch, stoop, and climb ramps and stairs. He is limited to simple, routine, and repetitive work with a maximum Specific Vocational Preparation (SVP) of two. He is limited to simple, work-related decisions.

R. at 135. In determining the RFC, the ALJ considered but granted little weight to the opinion of Dr. Kimberlee Terry, the state agency medical consultant, who concluded that the plaintiff could only perform “sedentary” work. R. at 137-38. Based upon this RFC and in reliance on the testimony of a vocational expert (“VE”), the ALJ concluded that plaintiff is capable of performing jobs that exist in significant numbers in the national economy. R. at 139-40. Specifically, the VE identified three positions that plaintiff could perform: price marker, hand packager, and cashier. Id. Each of these positions is performed at a light exertional level and is classified as unskilled, with a specific vocational preparation level of two. Id. The ALJ found that there are approximately 10, 010 jobs in Colorado and 696, 000 jobs nationwide in these positions. R. at 139-40. The VE also identified three positions that plaintiff could perform at the sedentary exertional level: addresser, surveillance system monitor, and telephone clerk. R. at 140. The ALJ found that there are approximately 260 jobs in Colorado and 15, 000 jobs nationwide in these positions. Id.

         On January 6, 2017, the Appeals Council denied plaintiff's request for review of the ALJ's denial of his claim. R. at 1. Given the Appeals Council's denial, the ALJ's decision is the final decision of the Commissioner.

         II. STANDARD OF REVIEW

         Review of the Commissioner's finding that a claimant is not disabled is limited to determining whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence in the record as a whole. See Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). The district court may not reverse an ALJ simply because the court may have reached a different result based on the record; the question instead is whether there is substantial evidence showing that the ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). “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). Moreover, “[e]vidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The district court will not “reweigh the evidence or retry the case, ” but must “meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Flaherty, 515 F.3d at 1070. Nevertheless, “if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

         III. THE FIVE-STEP EVALUATION PROCESS

         To qualify for disability benefits, a claimant must have a medically determinable physical or mental impairment expected to result in death or last for a continuous period of twelve months that prevents the claimant from performing any substantial gainful work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2). Furthermore,

[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 gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 423(d)(2)(A) (2006). The Commissioner has established a five-step sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R. § 404.1520; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). The steps of the evaluation are:

(1) whether the claimant is currently working; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets an impairment listed in appendix 1 of the relevant regulation; (4) whether the impairment precludes the claimant from doing his past relevant work; ...