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Strode v. Colvin

United States District Court, Tenth Circuit

September 4, 2013

LARRY STRODE, Plaintiff,


CARLOS MURGUIA United States District Judge

Plaintiff Larry Strode brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the Commissioner’s denial of plaintiff’s applications for a period of disability, disability insurance benefits, and supplemental security income under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 401 and 1381. Finding no error in the Commissioner’s analysis, the court affirms the decision of the Commissioner.

I. Background

Plaintiff protectively filed for disability insurance benefits and supplemental security income on April 6, 2010.[2] The agency denied his applications initially and upon reconsideration. Plaintiff requested a hearing before an administrative law judge (“ALJ”). Plaintiff’s request was granted, and plaintiff appeared with an attorney for a hearing before ALJ Michael D. Shilling on August 25, 2011. At the hearing, the ALJ received testimony from plaintiff and from a vocational expert (“VE”).

On September 7, 2011, the ALJ issued a favorable decision. The Appeals Council (“AC”) of the Social Security Administration reviewed the ALJ’s decision and found that plaintiff was not disabled in its June 5, 2012 decision. Thus, the decision of the AC stands as the final decision of the Commissioner.

The AC agreed with the ALJ’s findings under steps one, two, and three of the sequential evaluation.[3] These findings include that plaintiff has not performed substantial gainful activity since April 6, 2010 (plaintiff’s amended alleged onset date); that he has severe impairments including status-post left shoulder/arm injury and obesity; and that plaintiff’s impairments do not meet or equal the severity of a listed impairment. (R. at 6.) The AC also found that the RFC was accurate, noting that plaintiff could perform light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b), in that plaintiff:

[C]an lift and/or carry 20 pounds occasionally and 10 pounds frequently with the dominant right upper extremity only. The claimant can walk and/or stand six hours out of an eight hour workday and sit for six hours ou[t] of an eight hour workday. The claimant can occasionally climb stairs but should never climb ropes, ladders, or scaffolds. The claimant can occasionally crawl, but can never perform push, pull, reach, handle or finger activities with the left upper extremity.


However, the AC did not agree with the ALJ’s finding that plaintiff could not perform his past relevant work as he performed it. (Id. at 4–7, 18.) Plaintiff’s past work was as a retail clerk. (Id. at 5, 188 (indicating that plaintiff held the same position for over ten years).) The AC pointed out that plaintiff met the special earnings requirements of the Act on April 6, 2010, and he continues to meet them through March 31, 2015. (Id.) The AC found that information from plaintiff’s former employer indicates that plaintiff “had the necessary skills and abilities to perform, and did perform, the retail clerk job at the substantial gainful activity level” and that plaintiff had performed this job long enough to learn the job. (Id. at 6.) The AC found that this work qualified as past relevant work that plaintiff could perform as he performed it based on the RFC determined by the ALJ. (Id.) The AC then concluded plaintiff is not disabled within the meaning of the Act. (Id.)

II. Legal Standard

Under 42 U.S.C. § 405(g) this court applies a two-pronged review to the Commissioner’s decision. This review determines (1) whether the Commissioner’s decision is supported by substantial evidence in the record as a whole and (2) whether the Commissioner applied the correct legal standards. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted). “Substantial evidence” means “more than a mere scintilla” and “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Hunter v. Astrue, 321 F. App’x 789, 792 (10th Cir. 2009) (quoting Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007)). In its analysis, the court may not reweigh the evidence or substitute its judgment for that of the Commissioner. See White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001) (citing Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)). On the other hand, the court must examine the entire record—including any evidence that may detract from the Commissioner’s decision. Jaramillo v. Massanari, 21 F. App’x 792, 794 (10th Cir. 2001) (citing Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994)).

Plaintiff bears the burden of proving disability. Hunter, 321 F. App’x at 792. A disability requires an impairment—physical or mental—that renders one unable to engage in any substantial gainful activity. Id. (quoting Barnhart v. Walton, 535 U.S. 212, 217 (2002)). An impairment, as defined under 42 U.S.C. § 423(d)(1)(A), is a “medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”

The Commissioner uses a five-step sequential process to evaluate disability claims. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (citation omitted). But the Commissioner may stop once she makes a disability determination; she need not proceed to subsequent steps if she concludes that a claimant is or is not disabled at an intermediate step. Id. Step one requires the plaintiff to demonstrate that she is not engaged in substantial gainful employment activity. Id. If the plaintiff meets this burden, then the Commissioner proceeds to the second step. Step two requires the plaintiff to demonstrate that she has a “medically severe impairment or combination of impairments” that severely limits her ability to do work. Id. (internal quotation omitted). At this point, if the plaintiff cannot show that her impairments would have more than a minimal effect on her ability to do work, then the Commissioner may determine plaintiff is not disabled. Id. at 751. If the plaintiff meets the de minimis showing, then the Commissioner proceeds to step three. Id.

At step three, the Commissioner compares the plaintiff’s impairment to the “listed impairments”—impairments that the Secretary of Health and Human Services recognizes as severe enough to preclude substantial gainful activity. Id. If the plaintiff’s impairment matches one on the list, then a finding of disability is made. Id. If not, the Commissioner advances to step four. Id. Before step four, however, the Commissioner must assess the plaintiff’s RFC. Baker v. Barnhart, 84 F. App’x 10, 13 (10th Cir. 2003) (citing Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996)). The Commissioner uses this RFC for steps four and five. At step four, the plaintiff must demonstrate that her impairment prevents her from performing her past work. Williams, 844 F.2d at 751. If this showing is made, the Commissioner moves to the fifth and final step. Id. Here, the burden shifts to the Commissioner. Id. ...

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