Weshnak v. Commissioner of the Social Security Administration
Filing
23
ORDER AFFIRMING COMMISSIONER. The conclusion of the Commissioner through the Administrative Law Judge that plaintiff was not disabled is affirmed. By Judge Robert E. Blackburn on 3/25/13. (mnfsl, )
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 11-cv-02654-REB
SETH M. WESHNAK,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.
ORDER AFFIRMING COMMISSIONER
Blackburn, J.
The matter before me is plaintiff’s Complaint [#1],1 filed October 12, 2011,
seeking review of the Commissioner’s decision denying plaintiff’s claim for supplemental
security income benefits under Title XVI of the Social Security Act, 42 U.S.C. § 401, et
seq.2 I have jurisdiction to review the Commissioner’s final decision under 42 U.S.C. §
405(g). The matter has been fully briefed, obviating the need for oral argument. I
affirm.
1
“[#1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court’s electronic case filing and management system (CM/ECF). I use this convention
throughout this order.
2
Plaintiff filed a previous claim for supplemental security income benefits on February 14, 2006,
which was denied and not appealed. The present case involves plaintiff’s subsequent application for
benefits of November 27, 2006.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that he is disabled as a result of Asperger’s disorder,3 anxiety,
depression, and back pain status post-surgery. After his application for supplemental
security income benefits was denied, plaintiff requested a hearing before an
administrative law judge. This hearing was held on January 21, 2009. At the time of
the hearing, plaintiff was 22 years old. He has a high school education and no past
relevant work experience. He has not engaged in substantial gainful activity since
November 27, 2006, the date of his application for benefits.
The ALJ found that plaintiff was not disabled and therefore not entitled to
supplemental security income benefits. Although the evidence established that plaintiff
suffered from severe impairments, the judge concluded that the severity of those
impairments did not meet or equal any impairment listed in the social security
regulations. The ALJ found that plaintiff had the residual functional capacity to perform
a range of medium work with certain non-exertional restrictions. The ALJ concluded
that there were jobs existing in significant numbers in the national and local economies
that were within this residual functional capacity. He therefore found plaintiff not
disabled at step five of the sequential evaluation. Plaintiff appealed this decision to the
Appeals Council. The Council affirmed. Plaintiff then filed this action in federal court.
3
“Asperger's Disorder is a milder variant of Autistic Disorder. . . . [A[ffected individuals are
characterized by social isolation and eccentric behavior in childhood. There are impairments in two-sided
social interaction and non-verbal communication. Though grammatical, their speech may sound peculiar
due to abnormalities of inflection and a repetitive pattern. Clumsiness may be prominent both in their
articulation and gross motor behavior. They usually have a circumscribed area of interest which usually
leaves no room for more age appropriate, common interests.” What is Asperger’s Disorder? (available
at http://www.aspergers.com/aspclin.html) (last accessed March 25, 2013).
2
II. STANDARD OF REVIEW
A person is disabled within the meaning of the Social Security Act only if his
physical and/or mental impairments preclude him from performing both his previous
work and any other “substantial gainful work which exists in the national economy.” 42
U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social
Security [Act] requires the [Commissioner] to consider the combined effects of the
impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518,
1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of
a severe impairment or combination of impairments does not require a finding that an
individual is disabled within the meaning of the Social Security Act. To be disabling, the
claimant’s condition must be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d
335, 338 (10th Cir. 1995).
The Commissioner has established a five-step sequential evaluation process for
determining whether a claimant is disabled:
1.
The ALJ must first ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is
working is not disabled regardless of the medical findings.
2.
The ALJ must then determine whether the claimed
impairment is “severe.” A “severe impairment” must
significantly limit the claimant’s physical or mental ability to
do basic work activities.
3.
The ALJ must then determine if the impairment meets or
equals in severity certain impairments described in Appendix
1 of the regulations.
3
4.
If the claimant’s impairment does not meet or equal a listed
impairment, the ALJ must determine whether the claimant
can perform his past work despite any limitations.
5.
If the claimant does not have the residual functional capacity
to perform her past work, the ALJ must decide whether the
claimant can perform any other gainful and substantial work
in the economy. This determination is made on the basis of
the claimant’s age, education, work experience, and residual
functional capacity.
20 C.F.R. § 416.920(b)-(f). See also Williams v. Bowen 844 F.2d 748, 750-52 (10th
Cir. 1988). The claimant has the initial burden of establishing a disability in the first four
steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294
n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show that
the claimant is capable of performing work in the national economy. Id. A finding that
the claimant is disabled or not disabled at any point in the five-step review is conclusive
and terminates the analysis. Casias v. Secretary of Health & Human Services, 933
F.2d 799, 801 (10th Cir. 1991).
Review of the Commissioner’s disability decision is limited to determining
whether the ALJ applied the correct legal standard and whether the decision is
supported by substantial evidence. Hamilton v. Secretary of Health and Human
Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,
1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would
accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires
more than a scintilla but less than a preponderance of the evidence. Hedstrom v.
Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “Evidence is not substantial if it is
overwhelmed by other evidence in the record or constitutes mere conclusion.”
4
Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Further, “if the ALJ failed
to apply the correct legal test, there is a ground for reversal apart from a lack of
substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Although a reviewing court should meticulously examine the record, it may not reweigh
the evidence or substitute its discretion for that of the Commissioner. Id.
III. LEGAL ANALYSIS
The bases on which plaintiff seeks reversal of the ALJ’s disability decision are not
entirely clear from the briefing submitted on appeal. Plaintiff devotes a substantial
portion of his brief to apprising the court that the medical record supporting his
impairments is limited because plaintiff’s mother refused to pursue treatment for him
after he was diagnosed with Asperger’s disorder at age 11. Although the court is not
unsympathetic to these missives, or to plaintiff’s desire to now develop skills to better
cope with the limitations imposed by his conditions, they do not make out a legal basis
for reversal. Because I perceive no reversible error in the ALJ’s opinion, I affirm.
Contrary to the implication of plaintiff’s argument, it does not appear that the ALJ
simply rejected plaintiff’s claim for lack of medical evidence. Although the medical
record documenting plaintiff’s mental impairments was indeed scanty, the ALJ fulfilled
his duty to develop the record in this regard. See Carter v. Chater, 73 F.3d 1019,
1021 (10th Cir. 1996). He had available to him the reports of two consultative
examiners, Dr. Frederick Leidal (Tr. 248-253), a psychologist, and Lori Frey (Tr. 255257), a mental health counselor, as well as the live testimony of a third medical expert,
psychologist Dr. Robert Pelc (tr. 67-77). The ALJ thoroughly reviewed each of these
5
medical opinions, which were largely in agreement with one another and confirmed the
conclusion that plaintiff’s impairments were not disabling within the meaning of the Act.4
Plaintiff suggests that the ALJ erred at step 5 of the sequential evaluation
because three of the jobs identified by the vocational expert at the hearing are
precluded by his pain and functional limitations following the implantation of rods in his
back to correct scoliosis and/or limitations imposed by Asperger’s disorder. Yet none of
the three jobs identified by plaintiff in this regard was among those ultimately cited by
the ALJ in making his disability determination. (Compare Plf. Br. at 10 (challenging
plaintiff’s ability to perform jobs of vegetation puller, weed picker, and label inspector)
with Tr. 22 (finding plaintiff capable of performing medium jobs of floor waxer and
sweeper cleaner and light jobs of power screwdriver operator and cleaner
housekeeper).) Clearly, there was no reversible error in this regard.
Relatedly, plaintiff claims that he should have been allowed to submit additional
evidence to the Appeals Council for consideration.5 Plaintiff does not attach these
documents to his brief, and beyond a very broad and generic description as more recent
records relating to plaintiff’s ongoing medical and psychological conditions, he does not
specify what these inexplicit records contain or, more importantly, how they might have
changed the ALJ’s disability to determination. See Chambers v. Barnhart, 389 F.3d
1139, 1142 (10th Cir. 2004); O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994).
4
However, the ALJ properly rejected Ms. Frey’s conclusion that plaintiff is “developmentally
disabled” (Tr. 257) as going to an issue reserved exclusively to the Commissioner, 20 C.F.R. §
41.6.927(e), as well as not being defined by specific functional limitations. (Tr. 19.)
5
Nor can I fault the ALJ for failing to hold the record open following the conclusion of the
administrative hearing, as plaintiff’s attorney explicitly confirmed that she did not anticipate submittiting
additional documents thereafter. (Tr. 30.)
6
Absent such proof, any error in the failure to consider these documents must be
deemed harmless. See Bernal v. Bowen, 851 F.2d 297, 303 (10th Cir. 1988).6
Finally, plaintiff asks that, at the very least, I backdate his more recent application
for benefits, which is currently still pending review before the agency, to the date of
either his first application (see supra note 2) or the current application. He provides no
legal authority suggesting that I have jurisdiction to consider or issue orders
determinative of an application that is not presently before me. I decline this invitation
to usurp my proper role in the administrative process by doing so in this instance.7
THEREFORE IT IS ORDERED that the conclusion of the Commissioner through
the Administrative Law Judge that plaintiff was not disabled is AFFIRMED.
Dated March 25, 2013, at Denver, Colorado.
BY THE COURT:
6
In addition, it appears from the limited description provided that these documents do not relate
to the period for which benefits were denied, and thus are not material in any event. See 20 C.F.R. §
416.1470(b).
7
Indeed, the concept of “backdating” the application appears to be misplaced here. See 20
C.F.R. §§ 416.340 & 416.345. It seems more likely that plaintiff may seek to reopen the prior
determination before the Commissioner at the administrative level, see 20 C.F.R. § 416.1487(b), although
it appears the statute of limitations may well have run on any such application, see 20 C.F.R. §
416.1488(b), unless there is some evidence, not presently apparent from the record before me, that the
determination “was obtained by fraud or similar fault,” 416.1488(c).
7
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