Schwieters v. Commissioner, Social Security Administration

          MEMORANDUM OPINION AND ORDER

          NINA Y. WANG, MAGISTRATE JUDGE

         This civil action arises under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-33, for review of the Commissioner of the Social Security Administration's (“Commissioner” or “Defendant”) final decision partially granting Plaintiff Steven Schwieters's (“Plaintiff” or “Mr. Schwieters”) application for Disability Insurance Benefits (“DIB”). Pursuant to the Parties' consent [#15], this civil action was referred to this Magistrate Judge for a decision on the merits. See [#23]; 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 AFFIRMS the Commissioner's decision.

         BACKGROUND

         Mr. Schwieters, born October 29, 1962, alleges he became disabled on July 5, 2016, at 53 years-of-age, due to lung nodules, neuralgia of the right chest wall, COPD, PTSD, nerve damage of the right foot, general anxiety disorder, and somatoform disorder. See [#13-3 at 82-83;^[1] #13-6 at 192]. In addition, Plaintiff suffers from lumbar degenerative disc disease, multilevel spondylosis, thoracic radiculopathy, hip osteoarthritis, and bi-lateral knee pain. See [#13-2 at 15; #13-6 at 212-13, 220-24]. Plaintiff is a high school graduate who completed two years of community college without receiving a degree; he also served in the Army. See [#13-2 at 38, 42-43; #13-3 at 93; #13-6 at 193].

         On October 27, 2016, Plaintiff filed his application for DIB. [#13-2 at 12; #13-3 at 81]. The Social Security Administration denied Plaintiff's application administratively on March 13, 2017, and upon reconsideration on March 20, 2017. See [#13-2 at 12, 40; #13-3 at 81; #13-4 at 96-102]. Mr. Schwieters requested a hearing before an Administrative Law Judge (“ALJ”), see [#13-4 at 103-17], which ALJ Kurt Shuman (“the ALJ”) held on January 8, 2018, see [#13-2 at 12, 33]. The ALJ received testimony from the Plaintiff, Vocational Expert Bonnie Martindale (the “VE”), and Medical Expert Ronald Alston (the “ME”) at the hearing. See [id. at 12, 31].

         Mr. Schwieters testified that he last worked in July of 2016, though he would work if he could, and that he now receives disability benefits from the United States Department of Veterans Affairs (the “VA”) for his chronic bronchitis and granulomatous lung disease. [#13-2 at 42-43, 55]. Plaintiff continued that his “lungs hurt all the time” and that he cannot tolerate the use of inhalers. See [id. at 43-45]. Mr. Schwieters also testified that he received pain and nerve medications which caused adverse reactions, but that he receives epidural “nerve injections” on his right side that help, though the injections are inconsistent in their length of relief. See [id. at 46-48, 54]. As to his other ailments, Plaintiff testified that he has degenerative disc disease, issues with both knees, and arthritis in his hip-he used to see a chiropractor for these physical ailments; Plaintiff also stated that he suffered from psychological issues. See [id. at 49-55].

         The ME then testified to Mr. Schwieters's mental impairments, and considered whether Plaintiff's mental impairments met or medically equaled certain listings. See [#13-2 at 57-58]. Though finding that the medical record supported the presence of certain mental ailments, the ME testified that these mental ailments caused no more than mild to moderate limitations and thus Mr. Schwieters's mental impairments did not meet or medically equal a listing. See [id. at 58-68].

         The VE also testified at the hearing. Prior to the hearing, the VE summarized Mr. Schwieters's past relevant work to include auto mechanic, a specific vocational preparation (“SVP”)^[2] of 7, and a medium to very heavy exertion job; and a housekeeper-medical, a SVP of 2, and a medium to heavy exertion job. See [#13-6 at 256]. The VE testified that an individual, limited to light work and subject to several exertional and non-exertional limitations, could not perform Mr. Schwieters's past relevant work, but that such an individual could perform the light, unskilled jobs of marker and router-both SVP of 2. See [#13-2 at 72-74].^[3] The VE explained that this individual could not maintain these jobs if he was off-task more than 10% each day, or would miss more than 1-2 days per month for medical appointments, or would need at least one unscheduled break of 30-60 minutes per week. See [id. at 78-79]. As to an individual limited to sedentary work and further exertional and non-exertional limitations, the VE testified that such an individual could not perform Mr. Schwieters's past relevant work; the VE did not identify any jobs that such an individual could perform otherwise. See [id. at 75].

         On July 21, 2017, the ALJ issued a “partially favorable” decision to Mr. Schwieters. The ALJ concluded that Mr. Schwieters:

1. had not engaged in substantial gainful activity since the alleged onset date;

2. had the severe impairments of: chronic pain syndrome, major depressive disorder, somatic symptom disorder, anxiety, PTSD, pectus excavatum, lung modules, thoracic radiculopathy, intercostal neuralgia, COPD, and emphysema;

3. had no impairment or combination of impairments that met or medically equaled a listing;

4. had the RFC to perform light work, subject to various limitations, and could not perform any past relevant work; and

5. had the ability to perform jobs existing in the national economy prior to October 29, 2017, but did not have that ability after October 29, 2017.

         [#13-2 at 15-24]. Thus, at step five the ALJ determined that, pursuant to Medical-Vocational Guideline 202.06, Mr. Schwieters became disabled as of October 29, 2017, the date of his 55th birthday. [Id. at 24-25]. 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 1-3]. Plaintiff sought judicial review of the Commissioner's final decision in the United States District Court for the District of Colorado on June 29, 2018, invoking this court's jurisdiction to review the Commissioner's final decision under 42 U.S.C. § 1383(c)(3).

         LEGAL ...