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Bonzo v. Colvin

United States District Court, D. Kansas

January 7, 2015

GARY L. BONZO, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

This is an action reviewing the final decision of the Commissioner of Social Security which denied plaintiff disability insurance benefits. The matter has been fully briefed by the parties.

I. General legal standards

The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that "the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The court should review the Commissioner's decision to determine only whether the decision was supported by substantial evidence in the record as a whole, and whether the Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). When supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence requires more than a scintilla, but less than a preponderance, and is satisfied by such evidence that a reasonable mind might accept to support the conclusion. Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005).

The Social Security Act provides that an individual shall be determined to be under a disability only if the claimant can establish that he has a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents him from engaging in substantial gainful activity (SGA). The claimant's physical or mental impairment or impairments must be of such severity that he is not only unable to perform his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential evaluation process to determine disability. If at any step a finding of disability or non-disability can be made, the Commissioner will not review the claim further. At step one, the agency will find non-disability unless the claimant can show that he is not working at a "substantial gainful activity." At step two, the agency will find non-disability unless the claimant shows that he has a "severe impairment, " which is defined as any "impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled. If the claimant's impairment does not meet or equal a listed impairment, the inquiry proceeds to step four, at which the agency assesses whether the claimant can do his previous work. The claimant is determined not to be disabled unless he shows he cannot perform his previous work. The fifth step requires the agency to consider vocational factors (the claimant's age, education, and past work experience) and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. Barnhart v. Thomas, 540 U.S. 20 (2003).

The claimant bears the burden of proof through step four of the analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993). At step five, the burden shifts to the Commissioner to show that the claimant can perform other work that exists in the national economy. Nielson, 992 F.2d at 1120; Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The Commissioner meets this burden if the decision is supported by substantial evidence. Thompson, 987 F.2d at 1487.

II. Procedural History

This case has a lengthy history. Plaintiff first filed his applications in March of 2002, and they were denied initially and on reconsideration. In December of 2005, an administrative law judge (ALJ) found Plaintiff not disabled, but the Appeals Council granted Plaintiff's request for review and remanded the case to an ALJ for further consideration. A second ALJ issued an unfavorable decision in September of 2006, which the Appeals Council also remanded. In September of 2007, the second ALJ issued another unfavorable decision, which the Appeals Council again remanded. In March of 2010, a third ALJ issued an unfavorable decision which this Court reversed and remanded on the parties' agreed order in February of 2012. On remand, the Appeals Council directed an ALJ to offer Plaintiff a hearing and issue a new decision. In May of 2013, following a March of 2013 hearing, a new ALJ found that Plaintiff was not disabled. The Appeals Council declined jurisdiction of the case, making this the final decision of the Commissioner. See 20 C.F.R. §§ 404.984, 416.1484.

Plaintiff, at age thirty-seven, filed applications for disability insurance benefits and SSI primarily alleging left arm pain that limited his use of that arm. At step one, the administrative law judge (ALJ) found that plaintiff had not engaged in substantial gainful activity since November 15, 2000, his alleged onset date. The ALJ found at step two that plaintiff has severe impairments of reflex sympathetic dystrophy/nerve damage to the left elbow status post-surgery (complex regional pain syndrome), obesity, mild degenerative disc disease of the cervical spine, and status post-myocardial infarction with stent and defibrillator placement. But the ALJ found at step three that those impairments did not meet or equal the severity of a listed impairment presumed severe enough to render one disabled.

Accordingly, the ALJ determined plaintiff's residual functional capacity (RFC) and found he had the ability to perform light work except:

He may occasionally climb stairs, but should never climb ropes, ladders or scaffolds. He is limited to occasional pushing and pulling with his left upper extremity. He is limited to jobs that do not require constant rapid repetitive hand movements with his non-dominant left upper extremity. He is limited to no overhead reaching and handling with the left upper extremity. He is limited to occasional fingering with the left upper extremity. Secondary to reported chronic pain and potential side effects of medications, he is limited [to] jobs that do not demand attention to details or complicated job tasks or instructions.

Dk. 3, Exh. 1, p. 1072.

The ALJ found the plaintiff could not perform his past relevant work (a machinist, truck driver, or loader) but found that plaintiff could perform other jobs that exist in significant numbers in the national economy, including sales attendant, shipping receiving weigher, and ...


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