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Gurrola v. Astrue

April 16, 2010


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


Plaintiff Raul Gurrola asks this Court to reverse the denial of his application for Social Security disability insurance benefits or, in the alternative, to remand this case to the Social Security Administration ("SSA") for further proceedings. The defendant, the Commissioner of the SSA, opposes that motion and requests affirmance of the SSA's determination. After careful review of the parties' papers, the administrative record, and the relevant case law, the Court will grant the defendant's motion for affirmance.


In order to receive disability benefits under the Social Security Act, Mr. Gurrola must demonstrate that he is "disabled." 42 U.S.C. §§ 423(a)(1)(D), 1382(a)(1). He is disabled within the meaning of the statute "if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." Id. §1382c(a)(3)(A). In general, an individual qualifies as disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ." Id. § 1382c(a)(3)(B). Mr. Gurrola contests the finding by an Administrative Law Judge ("ALJ") of the SSA that he is not disabled because he is able to engage in substantial "light" work that exists in the national economy.*fn1

Mr. Gurrola moved to the United States from Mexico in 1980 and over the next two decades worked as an unskilled laborer in various positions. Administrative Record ("A.R.") at 17, 69. In May of 2000, he began a new job at a newspaper, The Gazette, that involved catching piles of papers and stacking them in pallets. Id. at 69-70, 156. Less than a month later, on May 31, 2000, he ceased work because of a lower back injury. Id. at 55, 122. After seeking medical care and receiving physical therapy, Mr. Gurrola was able to return to work in June 2000. Id. at 121-22. On June 20, 2000, however, Mr. Gurrola met again with his doctor and, although reporting decreased pain, was described by his doctor as being "fairly vocal about the fact that he . . . had no work restrictions and [was] doing repetitive lifting of 25 pound bundles of papers." Id. at 117. His doctor advised The Gazette that Mr. Gurrola should avoid lifting more than twenty pounds at a time and minimize bending and twisting. Id. at 107, 117. In light of those restrictions, The Gazette suspended Mr. Gurrola's work and arranged for him to receive temporary disability benefits through July 11, 2000. A.R. at 107.

On July 13, 2000, two days after the termination of his temporary disability benefits, Mr. Gurrola returned to his doctor and complained of worsening back pain. A.R. at 113. Concluding that Mr. Gurrola appeared to be "worsening with conservative care" although objective evidence of injury was "minimal," the doctor decided to refer Mr. Gurrola to a physiatrist, Dr. Bissell. Id. Dr. Bissell opined that Mr. Gurrola displayed "significant pain behaviors" and "was not getting any benefit from physical therapy." Id. at 215-16.

Mr. Gurrola was next evaluated on July 31, 2000, by Dr. Thomas Higginbotham, after Mr. Gurrola's attorney requested a change in health care provider. Id. at 156-59. Dr. Higginbotham saw Mr. Gurrola numerous times between 2000 and 2002. See id. at 402-06. At his initial appointment with Dr. Higginbotham, Mr. Gurrola complained of pain in his lower back, buttocks, and shoulders. Id. at 159-60. Dr. Higginbotham speculated that his patient might "have a ligamentous strain component" or "disc pathology of the low back because of the longstanding back pain, the intense nature and his failure to improve." Id. at 159. An MRI revealed that Mr. Gurrola had spondylolisthesis as well as stenosis near the base of his spine. Id. at 96.*fn2

Mr. Gurrola filed an application for Social Security disability benefits on September 27, 2000. A.R. at 14. On October 2, 2000, Dr. Higginbotham completed a "work restriction evaluation" for Mr. Gurrola in which he indicated that Mr. Gurrola was capable of working eight hours a day, but could only sit for up to fifteen minutes at a time, walk for thirty, and stand for ten. Id. at 150. Although Dr. Higginbotham believed Mr. Gurrola could probably also bend, stoop, twist, and/or kneel intermittently for at least two hours in an eight-hour workday, Mr. Gurrola disagreed and felt "he could probably only do these activities one or two times in a day." Id. at 152. Over the next several months Dr. Higginbotham and other doctors to whom Mr. Gurrola was referred attempted to treat his condition using a back brace and epidural injections, id. at 382-83, but Mr. Gurrola reported increased pain localized in his lower back and right buttock. Id. at 195. An orthopedic specialist recommend that Mr. Gurrola consider surgical decompression and fusion of selected vertebrae, id., but Mr. Gurrola did not act upon that recommendation. Id. at 217.

On February 27, 2001, Dr. Higginbotham opined in a second work restriction evaluation that Mr. Gurrola was no longer able to work an eight-hour day, and that he could sit or stand intermittently for only twenty minutes at a time for up to a total of two hours and walk for fifteen minutes at a time for up to a total of one hour. A.R. at 137. Dr. Higginbotham noted that, since Mr. Gurrola does not speak English, his ability to obtain a job meeting the appropriate specifications might be limited or nonexistent. Id. at 139.

In July 2001, as part of the application process for Social Security disability benefits, a doctor employed by the state of Colorado examined Mr. Gurrola and concluded that he was capable of working full eight-hour days, of which up to six hours could be spent sitting ("with normal breaks") and up to six standing or walking. A.R. at 87-88. Mr. Gurrola's application for Social Security benefits was subsequently denied on August 6, 2001. Id. at 30-31. The following month, Mr. Gurrola again reported increased pain to Dr. Higginbotham, id. at 287, and received injections which relieved about "50 % . . . of his pain about the buttocks and back." Id. at 286. Dr. Higginbotham reported that while "[s]ome of [Mr. Gurrola's] pain [was] frank pain," the doctor "also g[o]t the feeling that a good bit of his pain [was] related to fear, worry and concern, and perhaps maybe even some anxiety." Id. Again Mr. Gurrola considered surgery, and again decided against it, because he was "scared of the risk involved." Id. at 314. The last meeting between Mr. Gurrola and Dr. Higginbotham - or any other treating physician - documented in the record occurred on April 9, 2009. Id. at 279. In June 2002 Mr. Gurrola moved to Mexico to live with his family. Id. at 307.

Mr. Gurrola appealed the initial denial of his application for Social Security benefits and, with his counsel and an interpreter, attended a hearing before an Administrative Law Judge in Colorado on October 7, 2002. A.R. at 14. On November 29, 2002, after that hearing but before the ALJ had issued a decision, Dr. Higginbotham completed a third work evaluation form. In this evaluation, Dr. Higginbotham opined that Mr. Gurrola was incapable of working a full-time job because of the pain he experienced. Id. at 277. He concluded that Mr. Gurrola could not walk or stand for even ten minutes at a time and could only sit for a maximum of twenty minutes at a time, for a total of up to one to two hours in an eight-hour workday. Id. at 275.

In spite of Dr. Higginbotham's recommendations, the ALJ rejected Mr. Gurrola's claim in a decision issued on February 27, 2003. A.R. at 14-24. He did not find Mr. Gurrola's allegations of pain credible, id. at 22, and thought that Dr. Higginbotham's work restriction evaluations were "without substantial support from the other evidence of record" and "not consistent with the claimant's activities and lifestyle" in Mexico, where Mr. Gurrola spent his time walking around his family's farm, visiting relatives, and feeding chickens and horses. Id. at 21. The ALJ concluded that while Mr. Gurrola did suffer from a severe impairment - spondylolisthesis - he did not have a disability within the meaning of the Social Security regulations because he was capable of performing "sedentary to light work." Id. at 23.

Mr. Gurrola appealed that decision to the Social Security Administration's Appeals Council, which denied his request for review. A.R. at 5. He then petitioned for review of the ALJ's decision to the United States District Court for the District of Colorado. That court reversed the ALJ's decision and remanded the case for further review. Id. at 400-13. In that court's view, the ALJ "erred in rejecting the opinion of Gurrola's treating physician, Dr. Higginbotham, rejecting Gurrola's complaints of pain, and relying solely on the Medical-Vocational Guidelines (grids) to determine that Gurrola was not disabled." Id. at 409.

In an opinion dated May 21, 2005, A.R. at 375-92, the ALJ on remand explained at length why he had discounted Mr. Gurrola's subjective accounts of his pain, A.R. at 386-87, relied on a vocational expert to establish that work which Mr. Gurrola could perform is widely available, id. at 390-91, and assessed the reliability of Dr. Higginbotham's conclusions. Id. at 388-89. At the end of this reasoning process, the ALJ again found that Mr. Gurrola is not disabled. Id. at 391. Mr. Gurrola once again sought review of ...

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