Robles v. Commissioner, Social Security Administration

          MEMORANDUM OPINION AND ORDER

          Nina Y. Wang United States Magistrate Judge.

         Magistrate Judge Nina Y. Wang This civil action arises under Title XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 1381-83(c) for review of the Commissioner of the Social Security Administration's (“Commissioner” or “Defendant”) final decision denying Plaintiff Lorenzo Robles's (“Plaintiff” or “Mr. Robles”) application for Supplemental Security Income (“SSI”). Pursuant to the Parties' consent [#19], this civil action was referred to this Magistrate Judge for a decision on the merits. See [#27]; 28 U.S.C. § 636(c); Fed.R.Civ.P. 73; D.C.COLO.LCivR 72.2. Upon review of the Parties' briefing, the entire case file, the Administrative Record, and the applicable case law, this court respectfully REVERSES the Commissioner's decision and REMANDS for further proceedings.

         BACKGROUND

         Mr. Robles, born January 6, 1957, alleges he became disabled on February 2, 2016, at 59 years-of-age, due to Hepatitis C, chronic vomiting, chronic respiratory failure, severe depression, and chronic right foot pain. See [#18-3 at 54-55, ^[1] 57; #18-6 at 165, 173]. On August 31, 2016, Plaintiff protectively filed his application for SSI. [#18-2 at 17, 34; #18-3 at 53]. The Social Security Administration denied Plaintiff's application administratively on January 27, 2017. See [#18-2 at 17; #18-3 at 53]. Mr. Robles requested a hearing before an Administrative Law Judge (“ALJ”), see [#18-4 at 102-119], which ALJ Jennifer A. Simmons (“the ALJ”) held on September 5, 2017, see [#18-2 at 17, 31]. The ALJ received testimony from the Plaintiff at the hearing, who appeared pro se. See [id. at 33].

         Plaintiff testified that he last worked approximately three years prior to the hearing, and only on a part-time basis; that he cares for his mother; and that he receives food stamps and other state assistance. See [#18-2 at 36-37, 46-47]. Plaintiff also testified that he goes daily to Behavioral Health Group for methadone (which also helps his foot pain) and counseling, and that he has not drank alcohol or used heroin since 2016, though he uses marijuana still. See [id. at 39, 41-44, 48]. Plaintiff explained that in addition to several medications he uses an inhaler daily because he loses his breath. See [id. at 45]. As to his mental impairments, Plaintiff testified that he “get[s] time mixed up because [he's] had so many head injuries, ” that he imagines “things that aren't there or . . . people that aren't there, ” which causes him to feel confused, and that he has struggled with suicidal ideation. See [id. at 35, 38, 40, 46, 49]. Plaintiff stated that he “would love more than anything to go back to work” because he “made so much money” and had “such a good life.” [Id. at 45]; see also [id. at 47-48]. His previous employment included self-employed construction work as a plasterer. See [id. at 46].

         Following the hearing, the ALJ sent Vocational Expert Matthew Sprong (the “VE”) a Vocational Interrogatory. See [#18-6 at 242-45]. In response, the VE identified Mr. Robles's past relevant work to include construction worker I, specific vocational preparation (“SVP”)^[2] 4, heavy exertion job in the national economy and as performed by Plaintiff; and a plasterer, SVP 7, medium exertion job in the national economy but heavy exertion as performed by Plaintiff. See [id. at 247]. The VE then considered the work an individual could perform who was born on January 6, 1957, with the same education and work experience as Mr. Robles and is able to communicate in English, and who is limited to medium exertion work subject to mild or no restrictions on his ability to lift, carry, push, pull, sit, stand, climb stairs and ladders, kneel, stoop, crouch, crawl, understand, remember, carryout tasks, interact with coworkers and the public, or be around dust, fumes, gases, and environmental irritants. See [id. at 248]. The VE indicated that such an individual could not perform Mr. Robles's past relevant work because there is more than occasional exposure to dust, fumes, etc. and the plasterer takes 2-4 years to learn. See [id.]. The VE, however, identified jobs as a laundry laborer, floor attendant, and meat clerk-each SVP 2 and medium exertion jobs-that existed in the national economy that such an individual could perform. See [id. at 249]. The VE further stated that there was no conflict between his answers and the Dictionary of Occupational Titles (“DOT”). See [id. at 249, 250].

         On November 24, 2017, the ALJ issued a decision finding Mr. Robles not disabled under the Act, because Mr. Robles could perform other jobs that existed in the national economy, consistent with his physical and mental limitations. [#18-2 at 17-25]. Plaintiff requested Appeals Council review of the ALJ's decision, which the Appeals Council denied, rendering the ALJ's decision the final decision of the Commissioner. See [id. at 2-4]. Plaintiff sought judicial review of the Commissioner's final decision in the United States District Court for the District of Colorado on August 17, 2018, invoking this court's jurisdiction to review the Commissioner's final decision under 42 U.S.C. § 1383(c)(3).

         On appeal, Mr. Robles raises a host of objections to the ALJ's RFC assessment and step five analysis. As to the RFC assessment, Plaintiff argues that the ALJ (1) ignores evidence favorable to a finding of more severe mental and physical restrictions and instead focuses only on evidence favorable to the RFC assessment, (2) fails to support with substantial evidence the finding that Plaintiff can perform medium exertion work, and (3) fails to support with substantial evidence the finding that Plaintiff can frequently interact with others. See [#22; #26]. As to step five, Mr. Robles argues that the ALJ proffered a flawed hypothetical to the VE because it did not account for all of Plaintiff's limitations and the evidence demonstrates that Plaintiff cannot perform the jobs identified. See [#22; #26]. Because I agree that the ALJ erred in assessing Plaintiff's RFC, I focus solely on Mr. Robles's first basis for appeal. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (“We will not reach the remaining issues raised by appellant because they may be affected by the ALJ's treatment of this case on remand.”).

         LEGAL STANDARDS

         SSI is available to an individual who is financially eligible, files an application for SSI, and is disabled as defined in the Act. 42 U.S.C. § 1382. An individual is 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[.]” 42 U.S.C. § 13382c(a)(3)(B). The disabling impairment must last, or be expected to last, for at least 12 consecutive months. See Barnhart v. Walton, 535 U.S. 212, 214-15 (2002); see also 42 U.S.C. §§ 1382c(a)(3)(A); 20 C.F.R. § 416.905. And when a claimant has one or more physical or mental impairments, the Commissioner must consider the combined effects in making a disability determination. 42 U.S.C. § 1382c(a)(3)(G). The earliest a claimant can receive SSI is the month following the month within which the claimant filed her application, and thus the claimant must establish that she was disabled on or prior to her application date. See 20 C.F.R. §§ 416.200, 416.335; see also Id. § 416.912(b)(1) (“Before we make a determination that you are not disabled, we will develop your complete medical history for at least the 12 months preceding the month in which you file your application”).

         The Commissioner has developed a five-step evaluation process for determining whether a claimant is disabled under the Act. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). See also Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (describing the five steps in detail). “The claimant bears the burden of proof through step four of the analysis[, ]” while the Commissioner bears the burden of proof at step five. Neilson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993). “If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.” Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988).

         Step one determines whether the claimant is engaged in substantial gainful activity; if so, disability benefits are denied. Id. Step two considers “whether the claimant has a medically severe impairment or combination of impairments, ” as governed by the Secretary's severity regulations. Id.; see also 20 C.F.R. § 404.1520(e). If the claimant is unable to show that his impairments would have more than a minimal effect on his ability to do basic work activities, he is not eligible for disability benefits. If, however, the claimant presents medical evidence and makes the de minimis showing of medical severity, the decision maker proceeds to step three. Williams, 844 F.2d at 750. Step three “determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity, ” pursuant to 20 C.F.R. § 404.1520(d). Id. At step four of the evaluation process, the ALJ must determine a claimant's Residual Functional Capacity (“RFC”), which defines the maximum amount of work 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; see also Id. at 751-52 (explaining the decisionmaker must consider both the claimant's exertional and nonexertional limitations). The ALJ compares the RFC to the claimant's past relevant work to determine whether the claimant can resume such work. See Barnes v. Colvin, 614 Fed.Appx. 940, 943 (10th Cir. 2015) (citation omitted). At step five the Commissioner must show that a claimant can perform work that exists in the national economy, taking into account the claimant's RFC, age, education, and work experience. Neilson, 992 F.2d at 1120.

         In reviewing the Commissioner's final decision, the court is limited to determining whether the decision adheres to applicable legal standards and is supported by substantial evidence in the record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation omitted); accord Thompson v. Sullivan,987 F.2d 1482, 1487 (10th Cir. 1993) (“[I]f the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence.” (internal citation omitted)). “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) (internal citation omitted); cf. Musgrave v. Sullivan,966 F.2d 1371, 1374 (10th Cir. 1992) (“Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.”). The court may not reverse an ALJ simply because she may have reached a different result based on the record, see Ellison v. Sullivan,929 F.2d 534, 536 (10th Cir. 1990), nor may the court “reweigh the ...