Cobb v. Colvin
| Decision Date | 30 March 2016 |
| Docket Number | Civil Action No. 13-cv-03031-PAB |
| Citation | 175 F.Supp.3d 1227 |
| Parties | Charles D. Cobb, Plaintiff, v. Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — District of Colorado |
Joseph Anthony Whitcomb, Rocky Mountain Disability Law Group, Denver, CO, for Plaintiff.
David I. Blower, Social Security Administration, Denver, CO, for Defendant.
This matter is before the Court on plaintiff Charles D. Cobb's complaint [Docket No. 1] filed on November 6, 2013. Plaintiff seeks review of the final decision of defendant Carolyn W. Colvin (the “Commissioner”) denying plaintiff's claim for disability insurance benefits under Title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 401 -33 and 1381 -83c. The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. § 405(g).
On March 18, 2011, plaintiff applied for disability insurance benefits under Title II of the Act. R. at 169. Plaintiff alleged that he had been disabled beginning June 1, 2007. Id. Plaintiff appeared at a hearing conducted by an Administrative Law Judge (“ALJ”) on April 5, 2012. Id. Plaintiff was represented by a “non-attorney representative” at the hearing.1 Id. at 169.
On May 18, 2012, the ALJ denied plaintiff's claim. Id. at 175. The ALJ found that plaintiff had the severe impairments of status post right foot surgery and lumbar spine spondylosis. Id. at 171. The ALJ found that these impairments, alone or in combination, did not meet or medically equal one of the regulations' listed impairments, id. at 171-72, and found that plaintiff had the residual functional capacity (“RFC”) to “perform light work as defined in 20 C.F.R. § 404.1567(b) except that the work must be unskilled.” Id. at 172. Based upon this RFC and in reliance on the testimony of a vocational expert (“VE”), the ALJ concluded that, “[t]hrough the date[ ] last insured,... there were jobs that existed in significant numbers in the national economy that [plaintiff] could have performed.” Id. at 174.
The Appeals Council denied plaintiff's request for review of the ALJ's denial on August 30, 2013. R. at 6, 13. Consequently, the ALJ's decision is the final decision of the Commissioner. Pursuant to 20 C.F.R. § 422.210(c), plaintiff is presumed to have received notice of the Appeals Council's denial on September 4, 2013, five days after the denial was issued. Consequently, plaintiff's deadline to initiate this appeal was November 4, 2013, sixty days after plaintiff's receipt of notice. See 42 U.S.C. § 405(g).2 Plaintiff did not file his complaint until November 6, 2013, two days after his deadline to do so. Docket No. 1. The same day that plaintiff filed his complaint, plaintiff's counsel asked the Commissioner for an extension to file the appeal. R. at 3. On January 31, 2014, the Commissioner moved to dismiss plaintiff's appeal as untimely. Docket No. 8. Plaintiff did not respond to the Commissioner's motion. On March 12, 2014, Senior District Judge John L. Kane granted the Commissioner's motion to dismiss, Docket No. 9, and judgment entered in favor of the Commissioner. Docket No. 10.
On March 14, 2014, plaintiff's counsel again wrote the Commissioner and requested an extension of time to file this appeal. R. at 4. On April 14, 2014, the Commissioner formally denied plaintiff's request for an extension. Id. at 1-2. On April 23, 2014, plaintiff filed a motion in the District Court to equitably toll the deadline to file his complaint, Docket No. 11, which the Commissioner opposed. Docket No. 13. Judge Kane granted plaintiff's motion on May 27, 2014 on the ground that plaintiff “should not be deprived of his day in court because his attorney failed, for whatever reasons, to file his complaint on time and was two days late in doing so.” Docket No. 14 at 2. Pursuant to Judge Kane's order, the judgment was vacated and this case was reopened.
Review of the Commissioner's finding that a claimant is not disabled is limited to determining whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence in the record as a whole. See Angel v. Barnhart , 329 F.3d 1208, 1209 (10th Cir.2003). The district court may not reverse an ALJ simply because the court may have reached a different result based on the record; the question instead is whether there is substantial evidence showing that the ALJ was justified in her decision. See Ellison v. Sullivan , 929 F.2d 534, 536 (10th Cir.1990). “Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Flaherty v. Astrue , 515 F.3d 1067, 1070 (10th Cir.2007). Moreover, “[e]vidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.” Musgrave v. Sullivan , 966 F.2d 1371, 1374 (10th Cir.1992). The district court will not “reweigh the evidence or retry the case,” but must “meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Flaherty , 515 F.3d at 1070. Nevertheless, “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).
42 U.S.C. § 423(d)(2)(A) (2006). The Commissioner has established a five-step sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R. § 404.1520 ; Williams v. Bowen , 844 F.2d 748, 750 (10th Cir.1988). The steps of the evaluation are:
(1) whether the claimant is currently working; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets an impairment listed in appendix 1 of the relevant regulation; (4) whether the impairment precludes the claimant from doing his past relevant work; and (5) whether the impairment precludes the claimant from doing any work.
Trimiar v. Sullivan , 966 F.2d 1326, 1329 (10th Cir.1992) (citing 20 C.F.R. § 404.1520(b)-(f) ). 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. Sec'y of Health and Human Servs. , 933 F.2d 799, 801 (10th Cir.1991).
The claimant has the initial burden of establishing a case of disability. However, “[i]f the claimant is not considered disabled at step three, but has satisfied her burden of establishing a prima facie case of disability under steps one, two, and four, the burden shifts to the Commissioner to show the claimant has the residual functional capacity (RFC) to perform other work in the national economy in view of her age, education, and work experience.” See Fischer – Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir.2005) ; see also Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). While the claimant has the initial burden of proving a disability, “the ALJ has a basic duty of inquiry, to inform himself about facts relevant to his decision and to learn the claimant's own version of those facts.” Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir.1991).
Plaintiff argues that the ALJ erred by (1) failing to develop the record of plaintiff's impairments between his alleged onset date and the date he was last insured; (2) demonstrating bias by calling into question plaintiff's honesty at the hearing; (3) failing to make sufficient findings of fact and failing to use the correct legal standard in determining plaintiff's RFC; and (4) failing to make sufficient factual findings to support his adverse credibility determination. See generally Docket No. 19. The Commissioner argues, inter alia , that plaintiff's complaint should be dismissed because it was untimely. Docket No. 20 at 9-10.
The Court first addresses the Commissioner's argument that the Court should dismiss plaintiff's complaint as untimely. See Docket No. 20 at 9-10. Although the Commissioner does not acknowledge Judge Kane's prior order in her response brief, the Commissioner, in effect, moves for reconsideration of that order. The Commissioner's motion for reconsideration of Judge Kane's order, embedded in her response brief, is improper. Pursuant to the local rules of this district, a motion must be filed as a separate document and cannot be made as part of a response. D.C.COLO.LCivR 7.1(d). The Court, therefore, will not dismiss plaintiff's complaint as untimely and will consider this appeal on the merits.
Plaintiff argues that the ALJ failed to develop the record by (1) not asking plaintiff about his impairments, medications, and treatment during the hearing or allowing plaintiff's representative the opportunity to do so; and (2) relying on a lack of evidence of disability from the relevant time period without ordering a consultative examination....
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Henderson v. Comm'r of Soc. Sec.
...status expired." (citing Henrie v. U.S. Dep't of Health & Hum. Servs., 13 F.3d 359, 360 (10th Cir. 1993)); see also Cobb v. Colvin, 175 F. Supp. 3d 1227, 1234 (D. Colo. 2016) (same); 20 C.F.R. § 404.131(a) (same). Neither Ms. Garwon nor Ms. Sands cared for Ms. Henderson before that date, so......