Lovato v. Astrue

Filing 15

ORDER. The Commissioner's decision finding that Plaintiff did not become disabled until April 22, 2008 is REVERSED. Plaintiff has been disabled under Titles II and XVI of the Act since 4/1/17 and Plaintiff shall be awarded disability insurance benefits and supplemental security income consistent with this Order, by Judge Lewis T. Babcock on 5/15/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Lewis T. Babcock, Judge
Civil Action No. 11-cv-01354-LTB
LOUIS LOVATO,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Plaintiff Louis Montoya appeals Defendant’s (the “Commissioner”) final administrative
decision partially denying his claim for disability insurance benefits and supplemental security
income under Titles II and XVI of the Social Security Act (the “Act”). Jurisdiction in this appeal
is proper pursuant to 42 U.S.C. § 405(g). Oral argument would not materially assist in the
determination of this appeal. After consideration of the briefs and the record, I reverse the
Commissioner’s decision.
I. Statement of the Case
A hearing on Plaintiff’s claim was held before an administrative law judge (the “ALJ”)
on January 22, 2010. On March 22, 2010, the ALJ issued a decision finding that Plaintiff was
disabled within the meaning of the Act as of August 22, 2008 rather than April 1, 2007 as
asserted by Plaintiff. The Appeals Council denied Plaintiff’s request for review thereby
rendering the ALJ’s March 22, 2010 decision the Commissioner’s final decision for purposes of
my review. Plaintiff timely filed this appeal seeking review of the Commissioner’s final
decision.

II. Statement of Facts
A. Background
Plaintiff’s date of birth is July 26, 1953, making him 53 years old on his April 1, 2007
alleged disability onset date. Administrative Record (“AR”) 19. Plaintiff went to school to the
eleventh grade and completed 2 years of vocational college where he studied to be a machinist.
AR 28-9. Plaintiff worked in the past as a maintenance worker for an apartment complex, a form
setter, a construction worker, a machinist, a landscape laborer, all of which require medium to
heavy exertion. AR 52.
Plaintiff first alleged that he became disabled on August 1, 2006 but changed his
disability onset date to April 1, 2007 at the hearing before the ALJ. AR 28. At the time he
initially filed for benefits, Plaintiff alleged that his ability to work was limited by
encephalopathy, renal failure, gastrointestinal bleeding, arthritis in his knees, peptic ulcers, and
rhabdomyolosis. AR 200.
X-rays taken in 2005 showed that Plaintiff had advanced compartmental arthritis in his
right knee and early medical compartmental arthritis in his left knee. AR 348.
On April 21, 2007, Kristin Furfari, M.D., performed a consultative examination of
Plaintiff. AR 399 - 403. Plaintiff’s chief complaint was bilateral knee pain which had begun 2-3
years prior to his examination by Dr. Furfari. AR 399. Dr. Furfari observed that Plaintiff was
able to take his shoes off and on and climb on and off the exam table without difficulty; walk
with a light limp; and maintain stability without holding onto walls or furniture. AR 400 - 401.
Dr. Furfari diagnosed Plaintiff with bilateral knee pain; likely osteoarthritis with
degenerative changes; difficulty with bending and stooping secondary to his pain; and no range

2

of motion limitations within a passive range of motion. AR 402. In her functional assessment of
Plaintiff, Dr. Furfari opined that Plaintiff could stand and walk for 2 hours in an eight- hour work
day; sit for 6 hours; and frequently lift and carry 10 pounds. Id. Dr. Furfari further opined that
Plaintiff had postural limitations including bending, stooping, and crouching secondary to his
bilateral knee pain. AR 403.
X-rays taken shortly after Plaintiff’s examination by Dr. Furfari showed advanced
medical joint compartment narrowing suggesting cartilage and/or meniscal degenerative change
and small osseous densities in the right knee and medial compartment degenerative changes in
the left knee. AR 404.
A Colorado Department of Human Services Med-9 Form dated September 8, 2007 stated
that Plaintiff was disabled and unable to work at any job for an expected period of 12 months
due to a bilateral knee injury. AR 383. Shortly thereafter, Plaintiff was hospitalized and
diagnosed with acute renal failure, acute hepatitis, hepatic encephalopathy, drug abuse, and
alcoholism. AR 300. A subsequent Colorado Department of Human Services Med-9 Form
dated November 28, 2007 stated that Plaintiff was not totally disabled but had a mental or
physical impairment that substantially precluded him from engaging in his usual occupation of
carpenter for a period of 6 months or longer. AR 384.
On January 1, 2008, David Claiborne, SDM, completed a physical RFC assessment for
Plaintiff and opined that Plaintiff occasionally lift and carry 20 pounds; frequently lift and carry
10 pounds; stand, walk, and sit for 6 hours in an eight-hour workday; and occasionally climb,
kneel, crouch, and crawl. AR 335 - 36.
On April 22, 2008, Milton Waldron, M.D., performed a consultative examination of

3

Plaintiff. AR 347-48. X-rays obtained by Dr. Waldron showed “dramatic varus deformity of
both knees with bone-on-bone and total loss of any articular cartilage in the medial compartment
bilaterally, as well as significant patellafemoral arthritis.” AR 348. Dr. Waldron opined that
Plaintiff suffered from advanced bilateral medial compartmental arthritis and was disabled from
any work that required any walking, lifting, or carrying. Id. Dr. Waldron further opined that
Plaintiff could only perform a sedentary job and would only be able to return to his trade if he
had his knees replaced. Id.
A physical RFC assessment by David Wilber, MPT, dated August 29, 2008, indicated
that Plaintiff could lift 20 pounds occasionally and 10 pounds frequently; carry 10 pounds
occasionally; sit 4 hours at a time for a total of 8 hours; stand for 45 minutes at a time for a total
of 4 hours; walk for 30 minutes at a time for a total of 3 hours; occasionally climb stairs, stoop,
crouch, or balance; and never climb ladders or scaffolds, kneel, or crawl. AR 360 - 62.
Psychological tests administered to Plaintiff on May 8, 2008, showed Plaintiff to have a
verbal IQ of 70 (2nd percentile); a performance IQ 0f 98 (45th percentile); and a full scale IQ of
80 (9th percentile). AR 352.
B. Plaintiff’s Disability Hearing
At the hearing January 22, 2010, hearing, the ALJ asked the vocational expert (“VE”), if
an individual of the same age, education, and past work experience as Plaintiff who could lift or
carry up to 10 pounds frequently and 20 pounds occasionally; sit, stand, or walk with normal
breaks for 6 hours in an 8 hour workday; and occasionally climb, crouch, kneel, crawl could
return to Plaintiff’s past work. AR 52. The VE responded no but opined that such a person
could work as a fast food worker, cashier, or cafeteria attendant. AR 52-3. The ALJ then added

4

that the hypothetical individual was also be limited to simple, unskilled work. AR 54. The VE
responded that such an individual was still capable of working as a fast food worker, cashier, or
cafeteria attendant. Id.
C. The ALJ’s Decision
In her ruling, the ALJ applied the five-step sequential process outlined in 20 C.F.R. §
416.920(a). At the first step of the sequential process, the ALJ determined that Plaintiff had not
engaged in substantial gainful activity during the time period under review. AR 14. At the
second step, the ALJ determined that Plaintiff had severe impairments of “osteoarthritis of the
bilateral knees, alcoholic hepatitis, dysthymia, and borderline intellectual functioning.” Id. At
the third step, the ALJ determined that Plaintiff did not have an impairment or a combination of
impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. AR 15.
At the fourth step of the sequential process, the ALJ determined that prior to April 22,
2008, Plaintiff had the residual functional capacity (“RFC”) “to perform light work ..., while
lifting and carrying up to ten pounds frequently, and up to twenty pounds occasionally; sitting
and standing/walking for up to six hours each in a regular eight hour work day; occasionally
climbing, crouching, kneeling, or crawling, and while performing simple, unskilled work,
involving one, two, or three step instructions.” AR 16. Beginning April 22, 2008, the ALJ
determined that Plaintiff had the RFC “to perform sedentary work ..., while lifting and carrying
no more than ten pounds; standing and walking for up to two hours each in a regular work day,
and sitting up to six hours; while avoiding activities involving crawling, kneeling, or crouching,
and while performing simple, unskilled work at most, involving one, two, or three step

5

instructions.” AR 19.
After concluding that Plaintiff was unable to perform any past relevant work since
August 1, 2006, id., the ALJ proceeded to the fifth step of the sequential process and concluded
that there were a significant number of jobs in the national economy that Plaintiff was capable of
performing prior to April 22, 2008 but not after that date. AR 20 - 1. Thus, the ALJ concluded
that Plaintiff was not disabled prior to April 22, 2008 but became disabled on that date and
remained disabled through the date of her decision. AR 21.
III. Standard of Review
In reviewing the Commissioner's decision, I must determine whether substantial
evidence in the record as a whole supports the factual findings and whether the correct legal
standards were applied. Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028
(10th Cir. 1992); Hamilton v. Secretary of Health & Human Servs., 961 F.2d 1495, 1497-98
(10th Cir. 1992). Substantial evidence is "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Hamilton, supra, 961 F.2d at 1498. I "may neither
reweigh the evidence nor substitute [my] discretion for that of the Administrative Law Judge."
Kelley v. Chater, 62 F.3d 335, 337 (10th Cir. 1995). Where evidence as a whole can support
either the Commissioner's decision or an award of benefits, the Commissioner's decision must be
affirmed. See Ellison v. Sullivan, 99 F.2d 534, 536 (10th Cir. 1990).
IV. Analysis
Plaintiff raises two issues on appeal: (1) whether the ALJ properly determined Plaintiff’s
RFC prior to April 22, 2008; and (2) whether the Commissioner met his burden at proof at step 5
of the sequential process.

6

A. The ALJ’s Determination of Plaintiff’s RFC Prior to April 22, 2008
Plaintiff argues that the ALJ erred in determining that Plaintiff was capable of
performing light unskilled work prior to April 22, 2008
(1) by finding that Plaintiff could stand and/or walk 6 hours a day despite
evidence that Plaintiff had stopped working as a maintenance supervisor for an
apartment complex after he was no longer able to use a golf cart while performing
his duties;
(2) by finding that Plaintiff could perform light unskilled work prior to April 22,
2008 despite X-rays from 2005 & 2007 showing significant arthritis in Plaintiff’s
knees;
(3) by relying on the 2007 x-rays to support her conclusion that Plaintiff had less
advanced arthritis in his right knee even though Plaintiff reported that the pain
was worse in his right knee;
(4) by not discussing Plaintiff’s 2005 x-rays;
(5) by failing to properly take into account Plaintiff’s advanced age and Dr.
Furfari’s opinions;
(6) by ignoring the fact that Plaintiff’s daily activities were the same both before
and after the disability onset date;
(7) by questioning Plaintiff’s credibility based on his receipt of unemployment
benefits and ongoing work for 6-7 hours per week;
(8) by accepting Mr. Clairborne’s opinion that Plaintiff could perform light work
prior to April 22, 2008; and
(9) by rejecting Plaintiff’s alleged onset of disability date based on a lack of
contemporaneous medical evidence.
Taken together, these arguments raise the question of whether there is substantial evidence in the
record to support the ALJ’s conclusion that Plaintiff was capable of performing light unskilled
work prior to April 22, 2008.
The medical evidence of record regarding Plaintiff’s ability to work at the time of his

7

amended alleged disability onset date consists of Dr. Furfari’s report and the x-rays that she
ordered. Dr. Furfari opined that Plaintiff was limited to sedentary work but the ALJ attached no
weight to this opinion because she found that it was inconsistent with Dr. Furfari’s examination
findings. AR 19. The examination findings cited by the ALJ include Plaintiff’s ability to easily
move around the examination room; take his shoes off and on and climb on and off the exam
table without difficulty; walk with a light limp; and maintain stability without holding onto walls
or furniture. AR 18. None of these findings reflecting Plaintiff’s abilities during the short
duration of a consultative examination are inconsistent with a finding that Plaintiff could only sit
and/or stand for 2 hours during an 8-hour workday.
Dr. Furfari’s opinion that Plaintiff was limited to sedentary work in April of 2007 is
supported by other evidence in the record including the fact that Plaintiff’s last job as a
maintenance worker and supervisor at an apartment complex ended when he no longer had
access to a golf cart to get around the property. AR 45 -6. In contrast, much of the evidence
cited by the ALJ fails to support her conclusion that Plaintiff was capable of performing light
unskilled work prior to April 22, 2008.
First, the ALJ concluded that Plaintiff’s daily activities were inconsistent with his
allegation of disability prior to April 22, 2008 despite the fact that Plaintiff’s daily activities
were largely unchanged throughout the entire alleged period of disability. AR 17 - 18. The ALJ
also concluded that Plaintiff’s ability to work a maximum of 6-7 hours doing small building or
repair projects over the course of an entire week was inconsistent with his claim that he was
unable to perform work requiring exertion or move around without assistance. AR 17. This fact,
however, does not demonstrate any exertional ability or mobility on a sustained basis.

8

Moreover, Plaintiff’s ability to work up to 6-7 hours per week doing small building or repair
projects as of the January 22, 2010 hearing (AR 30-1 & 35) did not prevent the ALJ from
concluding that Plaintiff was disabled beginning April 22, 2008.
Because it was not supported by substantial evidence in the record, I conclude that the
ALJ erred in concluding that Plaintiff was capable of performing light unskilled work prior to
April 22, 2008. Rather, the evidence in the record dictates a finding that Plaintiff was limited to
sedentary work beginning April 1, 2007. Although the decision sometimes references the
original alleged disability onset date of August 1, 2006, these references are in error because the
ALJ clearly accepted Plaintiff’s amended alleged disability onset date of April 1, 2007. AR 12,
18 & 28. I therefore deny Plaintiff’s request that I ignore the fact that he amended his alleged
disability onset date and find that he was limited to sedentary work beginning August 1, 2006.
Factoring in Plaintiff’s age, education, and work experience, the ALJ concluded that
Medical-Vocational Rules 201.02 and 201.10, 20 C.F.R. Part 404, Subpart P, Appendix 2,
dictated a finding that Plaintiff was “disabled” after April 22, 2008. AR 21. On April 1, 2007,
Plaintiff was 53 years old. Medical-Vocational Rules 201.02 and 201.10 likewise dictate a
finding that Plaintiff was “disabled” after April 1 2007. See Medical-Vocational Rul 201.00(g)
(defining individuals approaching advanced age as those between the ages of 50 - 54). Under
these circumstances, no additional fact finding is necessary, and it is therefore appropriate to
remand for an immediate award of benefits. Dollar v. Bowen, 821 F.2d 530, 534-5 (10th Cir.
1987).

9

B. The ALJ’s Analysis at Step 5 of the Sequential Process
Since I have concluded that Plaintiff was disabled beginning April 1, 2007, I need not
consider Plaintiff’s alternative argument that the ALJ’s hypothetical questions to the VE failed to
precisely match the erroneous RFC he ascribed to her or reflect all impairments established by
the record.
V. Conclusion
For the reasons set forth above, IT IS HEREBY ORDERED that
1. The Commissioner’s decision finding that Plaintiff did not become disabled until
April 22, 2008 is REVERSED;
2. Plaintiff has been disabled under Titles II and XVI of the Act since April 1, 2007; and
3. Plaintiff shall be awarded disability insurance benefits and supplemental security
income consistent with this Order.

Dated: May

15 , 2012 in Denver, Colorado.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

10