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Blazevic v. Astrue

United States District Court, Tenth Circuit

September 24, 2013

RICHARD A. BLAZEVIC, Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

Plaintiff Richard Blazevic seeks review of a final decision by the Commissioner of Social Security (“Commissioner”) denying his application for disability insurance benefits under Title II of the Social Security Act.[1] Plaintiff alleges that the Commissioner’s decision must be reversed and the claim remanded because the ALJ failed to give proper weight to the testimony of Plaintiff’s treating psychiatrist, erred in finding Plaintiff not credible, improperly assessed Plaintiff’s residual functional capacity, and erred in relying upon testimony from the vocational expert. Because the Court finds that the Commissioner’s decision was not supported by substantial evidence, the Court reverses and remands this case for further consideration.

I. Factual and Procedural Background

Plaintiff was born on January 3, 1969, and he was forty-one years old when the ALJ issued his decision. Plaintiff has a high school education and he completed one year of college classes but did not receive a post-secondary degree. His work history includes several positions, including a gambling monitor, a gambling dealer, and a sales route driver. Plaintiff was not engaged in substantial gainful activity during the period of review.[2]

Plaintiff was involved in a motor vehicle accident on September 25, 2007. Following the collision, he developed neck pain and he felt pain and tingling in his right arm. On October 1, 2007, Plaintiff began seeing Terry A. Simmons, M.D., who diagnosed Plaintiff with a herniated disc with bilateral cervical radiculopathy and extreme anxiety. Adrian P. Jackson, M.D. also examined Plaintiff in October 2007 with respect to Plaintiff’s neck and arm pain. Dr. Jackson also diagnosed Plaintiff with a right paracentral disc herniation. Plaintiff underwent anterior cervical discectomy and fusion surgery on December 13, 2007, the date on which Plaintiff claims he became disabled.

Beginning on September 15, 2008, Plaintiff began seeing Wade A. Hachinsky, D.O., for evaluation of his anxiety. After performing a mental status examination, Dr. Hachinsky diagnosed Plaintiff with post-traumatic stress disorder (“PTSD”) with a score of fifty on the Global Assessment of Functioning (“GAF”) scale. Dr. Hachinsky prescribed Lexapro and Clonazepam and referred Plaintiff to Madison Avenue Psychological Services for counseling.

Plaintiff applied for disability benefits on September 5, 2008. The agency denied Plaintiff’s application both initially and on reconsideration. Following a hearing, at which Plaintiff was represented by counsel, an administrative law judge (“ALJ”) issued a decision on November 5, 2010. The ALJ found that Plaintiff was not under a “disability” as defined in the Social Security Act because he could perform other work. Plaintiff sought reconsideration of the ALJ’s decision, which the Appeals Council denied on January 7, 2011. On August 26, 2011, the Appeals Council of the Social Security Administration denied Plaintiff’s request for review. Accordingly, the ALJ’s decision stands as the final decision of the Commissioner.

II. Legal Standard

Pursuant to 42 U.S.C. § 405(g), “[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” Upon review, the Court must determine whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standard.[3] “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.”[4] The Court is not to reweigh the evidence or substitute its opinion for the ALJ.[5] The Court must examine the record as a whole, including whatever in the record detracts from the ALJ’s findings, to determine if the ALJ’s decision is supported by substantial evidence.[6] Evidence is not substantial if it is overwhelmed by other evidence or if it is a mere conclusion.[7]

To establish a disability, a claimant must demonstrate a physical or mental impairment that has lasted, or can be expected to last, for a continuous period of twelve months and an inability to engage in any substantial gainful work existing in the national economy due to the impairment.[8] The ALJ uses a five-step sequential process to evaluate whether a claimant is disabled.[9] The claimant bears the burden during the first four steps.[10] In steps one and two, the claimant must demonstrate that he is not presently engaged in substantial gainful activity and he has a medically severe impairment or combination of impairments.[11]

“At step three, if a claimant can show that the impairment is equivalent to a listed impairment, he is presumed to be disabled and entitled to benefits.”[12] If, however, the claimant does not establish an impairment at step three, the process continues. The ALJ assesses the claimant’s residual functioning capacity (“RFC”), and at step four, the claimant must demonstrate that his impairment prevents him from performing his past work.[13] The Commissioner has the burden at the fifth step to demonstrate that work exists in the national economy within the claimant’s RFC.[14] The RFC assessment is used to evaluate the claim at both step four and step five.[15]

III. Analysis

Plaintiff argues that the ALJ erred in finding Plaintiff’s testimony not credible, giving little weight to the testimony of Plaintiff’s treating psychiatrist, assessing Plaintiff’s RFC, and relying upon testimony from the vocational expert. ...


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