United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge.
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
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,  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].
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.
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”) 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].
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).
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.”).
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
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).
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.
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