Mans v. Astrue

Filing 21

ORDER. The Court finds that the ALJ adequately addressed the impact of claimant's mental impairments, and that the ALJ's instructions to the VE were supported by substantial evidence. The Court is not able to conclude, after review of the record, that the ALJ's RFC assessment did not properly address the impact of claimant's mental impairments. The decision of the ALJ is affirmed. By Judge R. Brooke Jackson on 01/14/13. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable R. Brooke Jackson

Civil Action No. 11-cv-00922-RBJ
DEREK W. MANS,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security Administration,
Defendant.

ORDER

The Court here reviews the Social Security Administration’s denial of Derek W. Mans’
(“claimant”) application for disability benefits under Title II of the Social Security Act.
Jurisdiction is proper under 42 U.S.C. § 405(g). The appeal became ripe upon the filing of
plaintiff’s reply brief on October 14, 2011. The Court apologizes for the delay in resolving this
case.
FACTS
Assault
On August 4, 2002, Mr. Mans, then age 35, was assaulted and struck in the face with an
unknown object. R. at 13. His injuries required emergency hospitalization, and he was
diagnosed as suffering from a closed head injury with multiple facial fractures as well as residual
symptoms including vertigo, nausea, headaches, fatigue, difficulty concentrating, and depression.
R. at 13–14. Treating doctors attributed these residual symptoms to myofascial pain disorder,
trigeminal neuralgia, and adjustment disorder. R. at 14.
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Mr. Mans claims a date of onset of disability beginning on the day after the assault,
August 5, 2002, and continuing until 2007 when he testified that he returned to work on a fulltime basis. R. 25. However, because his “date last insured” was December 31, 2003, the issue
presented to the agency was whether he was disabled within the meaning of the Social Security
Act between August 5, 2002 and December 31, 2003. Claimant’s initial request for disability
benefits was denied on November 7, 2007. R. at 11. Claimant then requested a hearing before
an Administrative Law Judge (the “ALJ”), which was held on August 19, 2009, in Colorado
Springs, Colorado, before Kathryn D. Burgchardt. Id. Traci Mans, claimant’s wife, testified on
his behalf, and Doris J. Shriver, an impartial Vocational Expert (the “VE”), testified at the
hearing. Id. The ALJ denied claimant disability and disability insurance benefits because she
determined that claimant was not disabled during the relevant period. R. at 8, 11. After the
ALJ’s denial, claimant requested that the Appeals Council review the ALJ’s decision, but the
Appeals Council denied this request. R. at 1. Claimant now appeals his case to this Court.
During his testimony before the ALJ, claimant testified that his injury caused him to be
incapacitated by vertigo, nausea, headaches, and constant pain in his neck. R. at 34–35. He
complained that physical activity caused him pain. R. at 36. Also, claimant testified that he had
memory difficulties and was constantly fatigued. R. at 36–38. Claimant’s wife also testified that
he had difficulties with nausea, vertigo, and memory issues following the injury. R. at 44–46.
Prior to his injury, claimant worked as a contractor, project manager, construction
superintendent, and electrician. R. at 47. Mr. Mans initially testified during the ALJ hearing that
in 2003 and 2004 he had his own construction company and was doing custom home and some
commercial work. R. 28-29. However, after his memory was jogged by his attorney who
pointed out that the records do not reflect earnings in 2003 or 2004, he remembered that he was

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not doing anything in those years other than helping his wife in her real estate business on a parttime basis, doing simple computer tasks, planting signs, and making photocopies. R. at 30–31.
The ALJ asked Mr. Mans about his activity levels during 2002 and 2003, but he indicated that he
could not remember details about that period (which the ALJ acknowledged could be a normal
result of the passage of time). R. at 32–33. Mrs. Mans testified that her husband performed
menial tasks for her business, but that he was not an employee of the company or on the payroll.
R. at 45–46.
Medical Records
Mr. Mans was seen by various health care professionals in the immediate days and weeks
following the assault. Among others, doctors Edgar Galloway III, an ENT specialist, and Ronald
Pelton, an ophthalmologist, performed surgery to repair malar complex and orbital fractures
(bones in the cheeks and around the eyes) on August 27, 2002. R. at 205–07.
Beginning in December 2002, Mr. Mans saw Terry Struck, M.D., a specialist in physical
medicine, rehabilitation and pain medicine, several times. On December 2, 2002 Mr. Mans told
Dr. Struck that he had headaches a couple times per week that each lasted about six hours, and
that he was having problems with short-term memory, concentration and organizing things. R. at
470. However, according to Dr. Struck’s record, Mr. Mans reported that he worked as a custom
home builder for his own company out of his home; he had lost two contracts because of his
injury; he had completed all of his current contracts and had not lined up any further contracts
yet; the economy had affected his business; and that he was able to work no more than 12 hours
per day, whereas he was working 16 hour days prior to his assault. R. at 472.
During a February 6, 2003 visit with Dr. Struck, Mr. Mans again complained of having
problems with short-term memory, concentration, and executive functioning. R. at 466. He

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reported experiencing vertigo in the mornings and periodically during the day. Id. He did,
however, report that his headaches had become rare. Id. He reported that he did not have any
current custom home building work but was looking and advertising for contracts. R. at 467.
Mr. Mans saw Galloway again on March 3, 2003. Dr. Galloway noted that claimant
suffered vertigo with occasional nausea and frequent headaches. R. at 198.
Mr. Mans next saw Dr. Struck on April 17, 2003, when he reported the return of periodic
headaches, morning vertigo, periodic daytime vertigo, and again, problems with short-term
memory, concentration, and executive functioning. R. at 462. He was scheduled to see Dr.
Struck again on June 23, 2003. However, according to Dr. Struck’s records, when the office
called him on June 19, 2003 to remind him of his upcoming appointment, Mr. Mans “canceled it
because of his busy work schedule.” R. at 461. Mr. Mans reportedly indicated that he would
call to reschedule an appointment when he could get his calendar cleared. Id.
The records note psychiatric issues as well. On November 6, 2007, in connection with
Mr. Mans’ application for disability benefits, a psychiatric assessment was performed by James
F. Dyde, M.D., a psychiatrist. R. at 397-410. Dr. Dyde’s interpretation of medical records was
that Mr. Mans had reported difficulty sleeping, being under significant stress and possibly had
indications of depression on January 17, 2002. R. at 410. There was an indication that Mr.
Mans was experiencing chronic anxiety disorder on June 20, 2002. He was assaulted with a
baseball bat on August 4, 2002. On August 16, 2002 his judgment and insight were reported as
being normal, and his mood and affect were appropriate to the situation. Id.
Apparently commenting on Mr. Mans visit with Dr. Galloway on April 17, 2003, Dr.
Dyde stated that Mr. Mans was “functioning independently in ADLs and mobility activities” but
described “continuing difficulties w/ situational depression due to financial difficulties . . . does

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not have any current custom home building work he decided to go into business w/ his wife
spending about 4 hours a day w/ this new business and spending the rest of his day w/ litigation
issues and resting,” but also that while he was alert and oriented, Mr. Mans described having
difficulty with executive functioning, and that his mood and affect were flat. Id. Dr. Dyde also
noted that Mr. Mans had cancelled an appointment (to see Dr. Struck) on June 19, 2003 due to
his heavy work schedule. Id.
Dr. Dyde’s assessment concluded that, during the relevant period, Mr. Mans suffered
from a concussion, R. at 399; “situational depression due to financial difficulties,” R. at 401; and
chronic anxiety disorder, R. at 403; but with respect to functional limitations, there was no
evidence of episodes of decompensation and insufficient evidence to determine whether his
mental disorders restricted his activities of daily living, social functioning or maintaining
concentration, persistence or pace. R. at 408.
ALJ Decision
The ALJ followed the five-step sequential evaluation process for determining whether
claimant was disabled. R. at 13–19. At step one, the ALJ essentially presumed that claimant did
not engage in substantial gainful activity during the relevant period. R. at 13. She noted that the
record contains numerous references to his work activity during the relevant period but
commented that “development of the issue of his work activity is not being pursued, to avoid
delay in the issuance of a decision.” Id.
At step two, the ALJ determined that “claimant had the following severe impairments:
adjustment disorder, myofascial pain disorder, trigeminal neuralgia, and cognitive disorder,
residual to a closed head injury.” Id.

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At the third step, the ALJ found that “claimant did not have an impairment or
combination of impairments that met or medically equaled one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1.” R. at 14.
At step four, the ALJ found that “claimant had the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b), while performing simple, unskilled work at most,
involving one, two, or three step instructions.” Id. Based on this residual functional capacity
(“RFC”), the ALJ found that claimant was unable to perform any past relevant work during the
relevant period. R. at 17. I note that the ALJ made this finding notwithstanding that she had also
noted the entries in the medical records indicating that Mr. Mans had told doctors that he was
working 12 hours a day (December 2, 2002); he was actively looking for construction work
(February 6, 2003); he was working with his wife because he could not find custom home
building work (April 17, 2003); and he cancelled a treatment session because of his busy work
schedule (June 19, 2003). R. at 16.
For the fifth and final step, the ALJ heard testimony during claimant’s hearing from the
VE. R. at 47–50. The ALJ asked the VE whether there was work for a hypothetical individual
with the same age, education, and past work experience as claimant and who was restricted to
work that was simple and unskilled with one, two, or three-step instructions. R. at 47–48. The
VE testified that such an individual would not be able to return to claimant’s past work, but such
an individual could work as a hand packer, a retail or wholesale marker, or a fast food worker.
R. at 48. The VE further testified that there were significant job opportunities for these positions
in both the regional and national economies. Id.
Based in large part on the VE’s testimony, the ALJ determined that, considering the
claimant’s age, education, work experience, and residual functional capacity, “there were jobs

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that existed in significant numbers in the national economy that the claimant could have
performed.” R. at 18. Accordingly, the ALJ found that claimant was not entitled to benefits
because he was not disabled at any time during the relevant period. Id.
STANDARD OF REVIEW
This appeal is based upon the administrative record and the briefs submitted by the
parties. When reviewing a final decision by the Commissioner, the role of the district court is to
examine the record and determine whether it “contains substantial evidence to support the
Secretary’s decision and whether the Secretary applied the correct legal standards.” Rickets v.
Apfel, 16 F.Supp.2d 1280, 1287 (D. Colo. 1998) (citing Hamilton v. Secretary of Health and
Human Services, 961 F.2d 1495, 1497 (10th Cir. 1992)). A decision cannot be 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.” Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988). More
than a scintilla, but less than preponderance is required. Zoltanski v. F.A.A., 372 F.3d 1195,
1200 (10th Cir. 2004). Although the evidence may support two inconsistent conclusions, that
“does not prevent an administrative agency’s finding from being supported by substantial
evidence.” Id. The Court cannot “reweigh the evidence or substitute [its] judgment for that of
the agency.” White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001).
CONCLUSIONS
Mr. Mans argues that the ALJ (1) did not properly consider all of his nonexertional
impairments when assessing his RFC, and (2) likewise, did not properly address the impact of
his specific mental limitations.

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1. Nonexertional Impairments.
An ALJ’s RFC assessment must be based upon all of the relevant evidence of the
claimant’s ability to work. SSR 96-8p, 1996 WL 374184, at *2 (July 2, 1996). Accordingly, the
ALJ must consider all of a claimant’s physical and mental impairments when assessing the
claimant’s RFC. Id. at *5.
Mr. Mans argues that the ALJ did not consider his nonexertional impairments,
specifically the impacts of dizziness, headaches, fatigue, and lack of stamina. Id. He maintains
that such impairments could impede one’s ability to sustain regular work activity on a full-time
basis, and that the case should be remanded for consideration of these impairments. P. Br. at 7-8.
The ALJ did acknowledge that Mr. Mans experienced vertigo, depression, fatigue,
headaches, and that he had difficulty concentrating because of myofascial pain disorder and
trigeminal neuralgia, as well as adjustment disorder. R. at 13–14. Myofascial pain and
trigeminal neuralgia are painful and potentially disabling conditions. However, the ALJ did not
find those to be disabling impairments in this instance. R. at 14–17. In substance the ALJ found
that Mr. Mans’ assertions that he could not work were not credible, in light of his comments to
Dr. Struck and to Dr. Struck’s staff between December 2, 2002 and June 19, 2003, as noted
above in the discussion of the medical records, and the fact that he admits that he performed light
work for his wife’s real estate business during the relevant time period.
The Court does not doubt that Mr. Mans suffered physical consequences from the assault
that continued throughout the relevant period, nor does the Court doubt that his injuries had an
impact on his ability to work. Both the testimony at the hearing and the medical records so
indicate. However, the Court also finds that the significance given to these impairments by the

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ALJ was supported by “substantial evidence” in the record. See R. at 16, 30–31, 45–46, 397–
410, 461, 466, 472. As indicated above, that is the standard that the Court must apply in this
review. Accordingly, the Court finds no good ground to remand the case for further
consideration of the impact of Mr. Mans’ nonexertional impairments.
2. Mental Limitations.
Claimant secondly argues that the ALJ failed to properly consider the impact of
claimant’s mental impairments. When a “claimant establishes existence of severe mental
impairment that does not meet the listings, [the ALJ] must use [VE] testimony or other similar
evidence to meet his burden of showing claimant can perform jobs available in the national
economy.” Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991) (citing Wheeler v. Sullivan,
888 F.2d 1233, 1238 (8th Cir. 1989)). Furthermore, when using VE testimony, the ALJ must
express nonexertional capacity in terms of work-related functions. SSR 96-8p, 1996 WL
374184, at *6 (July 2, 1996). For example, when assessing an RFC for an individual with mental
impairments, the ALJ should consider the individual’s ability to: “understand, carry out, and
remember instructions; use judgment in making work-related decisions; respond appropriately to
supervision, co-workers and work situations; and deal with changes in a routine work setting.”
Id.
First, I note the finding of the psychiatrist, Dr. Dyde, who found from his review of the
medical records that there was insufficient evidence to determine that Mr. Mans’ mental
disorders restricted his activities of daily living, social functioning or maintaining concentration,
persistence or pace.
Second, the Court notes that the ALJ instructed the VE to “assume that this individual
would require work which is simple and unskilled with one, two or three-step instructions.” R.

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at 47–48. These instructions relate to the claimant’s ability to understand, remember, and carry
out instructions. See SSR 96-8p, at *6. There is substantial evidence in the record that supports
the ALJ’s hypothetical. During the relevant period claimant complained of having problems
with short-term memory and concentration. R. at 462, 466, 470. However, there was little
evidence that he had poor judgment, could not appropriately respond to work supervision, or
could not handle changes in a routine work setting. See R. at 408, 462, 466, 470. Moreover, as
indicated above, the ALJ essentially found that Mr. Mans’ position regarding his inability to do
work during the relevant period was not entirely credible.
Accordingly, the Court finds that the ALJ adequately addressed the impact of claimant’s
mental impairments, and that the ALJ’s instructions to the VE were supported by substantial
evidence. The Court is not able to conclude, after review of the record, that the ALJ’s RFC
assessment did not properly address the impact of claimant’s mental impairments.
ORDER
The decision of the ALJ is affirmed.
DATED this 14th day of January, 2013.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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