United States District Court, D. Colorado
OPINION AND ORDER
Reid Neureiter, United States Magistrate Judge.
government determined that Plaintiff Little Joe DeHerrera was
not disabled for purposes of the Social Security Act.
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.
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.
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).
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.
second step of the Commissioner's five-step sequence for
making determinations,  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.
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.
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 ...