DeHerrera v. Saul

          OPINION AND ORDER

          N. Reid Neureiter, United States Magistrate Judge.

         The government determined that Plaintiff Little Joe DeHerrera was not disabled for purposes of the Social Security Act. AR^[2] 12. Mr. DeHerrera has asked this Court to review that decision. The Court has jurisdiction under 42 U.S.C. § 405(g), and both parties have agreed to have this case decided by a U.S. Magistrate Judge under 28 U.S.C. § 636(c). Dkt. #11.

         Factual Background

         Mr. DeHerrera had his left leg amputated below the knee as a result of a motor vehicle accident in 1996. In 2015, he had a fall that further injured his left leg. Mr. DeHerrera insists that he cannot use a prosthetic device for more than a few hours a day because of nerve pain “like electric shocks” and tenderness on his stump. He claims to have difficulty sitting, standing, and walking and has reported an inability to exercise because of pain in his stump. He testified that he suffers from chronic pain in his back and lower extremities. He also claims to suffer from depression and anxiety which have caused him to fear accidents and feel like he needs to defend himself, as well as some social issues getting along with others. He also testified that he has difficulty with his memory and concentration. He has attempted suicide four times, and in 2015 a medical provider indicated Mr. DeHerrera had a “passive preoccupation with suicide.” He takes Neurontin for pain, and Elavil for depression. Despite these complaints, the ALJ found that Mr. DeHerrera was not disabled within the meaning of Social Security regulations such that he would be entitled to an award of benefits.

         Standard of Review

         In Social Security appeals, the Court reviews the decision of the administrative law judge (“ALJ”) to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied. See Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007). “Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.” Raymond v. Astrue, 621 F.3d 1269, 1271-72 (10th Cir. 2009) (internal quotation marks omitted). The Court “should, indeed must, exercise common sense” and “cannot insist on technical perfection.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Court cannot reweigh the evidence or its credibility. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

         Nonetheless, the determination of whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Fulton v. Heckler, 760 F.2d 1052, 1055 (10th Cir. 1985). Ultimately, the Court must review the record as a whole, and “[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); see also Casias, 933 F.2d at 800-01.

         Background

         At the second step of the Commissioner's five-step sequence for making determinations, ^[3] the ALJ found that Mr. DeHerrera has the following severe impairments: (1) left below-the-knee amputation; (2) affective disorder; and (3) anxiety disorder. AR 17. The ALJ noted that Mr. DeHerrera had a history of alcohol abuse but that there was no medical evidence of a substance abuse disorder, and concluded the condition was in remission. AR 18.

         The ALJ then determined at step three that Mr. DeHerrera “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments” in the regulations. Id. Because he concluded that Mr. DeHerrera did not have an impairment or combination of impairments that meets the severity of the listed impairments, the ALJ found that Mr. Herrera has the following residual functional capacity (“RFC”):

. . . [Mr. Herrera] has the residual functional capacity to perform a light work as defined in 20 CFR 416.967(b) except that he can lift 20 pounds occasionally and ten pounds frequently; sit six hours in an eight-hour workday; and stand and/or walk four hours in an eight-hour workday and stand and/or walk four hours in an eight-hour workday. The claimant can never kneel or crawl, but can otherwise frequently stoop and crouch. Mentally the claimant can meet all basic demands of unskilled work at the substantial gainful activity level on a sustained basis. He is limited to understanding, remembering, and carrying out simple instructions, simple work-related decisions, and cannot deal with more than routine changes in work settings. The claimant has a social impairment that would preclude any work that would require him to have more than occasional interaction with the public.

AR 20-21. The ALJ found that Mr. DeHerrera had no past relevant work but concluded that he was capable of making a successful adjustment to other work that exists in significant numbers in the national economy. AR 28. Accordingly, Mr. DeHerrera was deemed not to have been under a disability since July 15, 2015. Id.

         Analysis

         Mr. DeHerrera argues that the ALJ's decision should be reversed because his finding that Mr. DeHerrera was not disabled is not supported by substantial evidence. Specifically, Mr. DeHerrera contends that the ALJ did not properly assess the consistency of Mr. DeHerrera's statements with the medical evidence, did not properly weight the opinion evidence, and failed to order a consultative examination. The Court ...