United States District Court, D. Utah
MEMORANDUM DECISION & ORDER
S. JENKINS UNITED STATES DISTRICT JUDGE.
pursuant to 42 U.S.C. 405(g), 1383(c)(3), seeks judicial
review of the decision of the Acting Commissioner of Social
Security (Commissioner) denying his claims for Disability
Insurance Benefits (DIB) and Supplemental Security Income
(SSI) under Titles II and XVI of the Social Security Act (the
Act). After careful review of the entire record, the
parties' briefs, the relevant law, and arguments
presented at a hearing held on February 15, 2018, the Court
FINDS that the decision of the Commissioner should be
Miguel Gutierrez ("Plaintiff) filed applications for
Disability Insurance Benefits (DIB) and Supplemental Security
Income (SSI) on August 5, 2013, alleging disability on
September 1, 2013 as amended at hearing (Transcript of
Administrative Record "T" at 11). He alleged
disability from that time due to residual injuries and
conditions from a severe motor vehicle-pedestrian accident on
December 18, 2005 (T. 16), resulting in degenerative disc
disease of the lumbar spine, spondylolisthesis, and a history
of extradural cyst in his thoracolumbar spine, with multiple
surgical interventions (T. 14), and resulting in severe
chronic bilateral radiculopathies with severe chronic
denervation (T. 469, 521), as well as right tibia/fibula
fracture with surgical fixation and right leg shortening, as
well as right shoulder fracture with degenerative joint
disease status post surgery (T. 14).
meets insured status requirements of the Social Security Act
through December 31, 2018, and has not engaged in any
substantial gainful activity since September 1, 2013, the
amended alleged onset date (T. 13). The claims were denied
initially on April 28, 2014, at reconsideration on November
12, 2014 (T. 11), and finally in an unfavorable hearing
decision dated July 22, 2016, by Administrative Law Judge
("ALJ") Gilbert A. Martinez (T. 8-26).
found that the Plaintiff has severe impairments of a history
of right tibia/fibula fracture 2005, status post surgical
fixation, with right leg shortening; degenerative joint
disease and a history of a right shoulder fracture in 2005,
status post surgery; and degenerative disc disease,
spondylolisthesis, and a history of an extradural cyst in his
thoracolumbar spine, status post a laminectomy and excision
of the extradural cyst on November 19, 2012, and a L5-Sl
fusion on September 11, 2013, concluding that none of these
conditions met or medially equaled the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
concluded that the Plaintiff had the residual functional
capacity ("RFC") to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b) in that he can lift and
carry up to twenty pounds occasionally and ten pounds
frequently; sit for one hour at a time and stand for thirty
minutes at a time; sit a total of about six hours in an
eight-hour workday, and stand or walk for a total of four
hours in an eight-hour workday; can frequently balance, and
can occasionally stoop, kneel, crouch, crawl, or climb ramps
or stairs; can never climb ladders, ropes or scaffolds; can
never reach overhead with his right upper extremity; can
frequently reach overhead with his left upper extremity; can
frequently handle, fmger, feel or reach in other directions
with his bilateral upper extremities; and must avoid even
moderate exposure to hazards such as machinery or unprotected
heights (T. 16).
on this RFC, the ALJ concluded that Plaintiff is unable to
perform his past relevant work as a material handler, heavy,
semi-skilled (SVP-3), spray painter I, medium, semi-skilled
(SVP-4), cook helper, medium, semi-skilled (SVP-3), and corn
popper, heavy, unskilled (SVP2) (T. 24), but is able to
adjust to work as a semi-conductor bonder, sedentary,
unskilled, and a touch up screener, sedentary unskilled (T.
14, 2017, the Appeals Council denied a request for review,
making the ALJ's determination the final agency decision
(T. 1). On August 29, 2017, Plaintiff filed his complaint in
this case (Doc. 1).
standard of review for appeal of a Social Security disability
determination is whether the final decision is supported by
substantial evidence in the record as a whole and whether the
correct legal standards were applied. See Williamson v.
Barnhart, 350 F.3d 1097, 1098 (10th Cir. 2003). A
decision "is not based on substantial evidence if it is
overwhelmed by other evidence in the record or if there is a
mere scintilla of evidence supporting it." Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004)
(citations omitted). Further, reversal is also appropriate
where the ALJ either applies an incorrect legal standard or
fails to demonstrate reliance on the correct legal standards.
Hamlin, 365 F.3d at 1214 (citing Winfrey v.
Chater, 92 F.3d 1017, 1019 (10th Cir. 1996)).
to regulatory changes effective March 27, 2017, it was
established under 20 CFR 404.1527(d)(2) that, "If we
find that a treating source's opinion on the issue(s) of
the nature and severity of your impairments) is
well-supported by the medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in your case record, we will
give it controlling weight." Pursuant to SSR 96-2p, even
if the ALJ finds that the treating source is not entitled to
controlling weight, "treating source medical opinions
are still entitled to deference and must be weighed using all
of the factors provided in 20 CFR 404.1527...." Those
factors included priority of a treatment relationship over an
examining or non-examining relationship; length of treatment;
supportability; and consistency. This has become known as the
"treating physician rule."
the evidence as a whole can support either the agency's
decision or an award of benefits, the agency's decision
must be affirmed. Ellison v. Sullivan,929 F.2d 534,
536 (10th Cir. 1990). Further, this Court may not simply
re-weigh evidence in a light more favorable to the Plaintiff
(see Lax v. Astrue,489 F.3d 1080, 1084 (10th Cir.
2007), the Court "may not displace the agency's
choice between two fairly conflicting views, ...