United States District Court, D. Colorado
NEAL H. GALLEGOS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.
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).
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
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.
STANDARD OF 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).
THE FIVE-STEP EVALUATION PROCESS
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; ...