1

 “[#1]” is an example of the convention I use to identify the docket number assigned to a specific

paper by the court’s electronic case filing and management system (CM/ECF). I use this convention

throughout this order.

2

 Plaintiff filed a previous claim for supplemental security income benefits on February 14, 2006,

which was denied and not appealed. The present case involves plaintiff’s subsequent application for

benefits of November 27, 2006.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Robert E. Blackburn

Civil Action No. 11-cv-02654-REB

SETH M. WESHNAK,

Plaintiff,

v.

MICHAEL J. ASTRUE, Commissioner of Social Security,

Defendant.

ORDER AFFIRMING COMMISSIONER

Blackburn, J.

The matter before me is plaintiff’s Complaint [#1],1

 filed October 12, 2011,

seeking review of the Commissioner’s decision denying plaintiff’s claim for supplemental

security income benefits under Title XVI of the Social Security Act, 42 U.S.C. § 401, et

seq.2 I have jurisdiction to review the Commissioner’s final decision under 42 U.S.C. §

405(g). The matter has been fully briefed, obviating the need for oral argument. I

affirm.

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 “Asperger's Disorder is a milder variant of Autistic Disorder. . . . [A[ffected individuals are

characterized by social isolation and eccentric behavior in childhood. There are impairments in two-sided

social interaction and non-verbal communication. Though grammatical, their speech may sound peculiar

due to abnormalities of inflection and a repetitive pattern. Clumsiness may be prominent both in their

articulation and gross motor behavior. They usually have a circumscribed area of interest which usually

leaves no room for more age appropriate, common interests.” What is Asperger’s Disorder? (available

at http://www.aspergers.com/aspclin.html) (last accessed March 25, 2013). 

2

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff alleges that he is disabled as a result of Asperger’s disorder,3 anxiety,

depression, and back pain status post-surgery. After his application for supplemental

security income benefits was denied, plaintiff requested a hearing before an

administrative law judge. This hearing was held on January 21, 2009. At the time of

the hearing, plaintiff was 22 years old. He has a high school education and no past

relevant work experience. He has not engaged in substantial gainful activity since

November 27, 2006, the date of his application for benefits.

The ALJ found that plaintiff was not disabled and therefore not entitled to

supplemental security income benefits. Although the evidence established that plaintiff

suffered from severe impairments, the judge concluded that the severity of those

impairments did not meet or equal any impairment listed in the social security

regulations. The ALJ found that plaintiff had the residual functional capacity to perform

a range of medium work with certain non-exertional restrictions. The ALJ concluded

that there were jobs existing in significant numbers in the national and local economies

that were within this residual functional capacity. He therefore found plaintiff not

disabled at step five of the sequential evaluation. Plaintiff appealed this decision to the

Appeals Council. The Council affirmed. Plaintiff then filed this action in federal court. 

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II. STANDARD OF REVIEW

A person is disabled within the meaning of the Social Security Act only if his

physical and/or mental impairments preclude him from performing both his previous

work and any other “substantial gainful work which exists in the national economy.” 42

U.S.C. § 423(d)(2). “When a claimant has one or more severe impairments the Social

Security [Act] requires the [Commissioner] to consider the combined effects of the

impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518,

1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of

a severe impairment or combination of impairments does not require a finding that an

individual is disabled within the meaning of the Social Security Act. To be disabling, the

claimant’s condition must be so functionally limiting as to preclude any substantial

gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d

335, 338 (10th Cir. 1995). 

The Commissioner has established a five-step sequential evaluation process for

determining whether a claimant is disabled:

1. The ALJ must first ascertain whether the claimant is

engaged in substantial gainful activity. A claimant who is

working is not disabled regardless of the medical findings.

2. The ALJ must then determine whether the claimed

impairment is “severe.” A “severe impairment” must

significantly limit the claimant’s physical or mental ability to

do basic work activities. 

3. The ALJ must then determine if the impairment meets or

equals in severity certain impairments described in Appendix

1 of the regulations. 

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4. If the claimant’s impairment does not meet or equal a listed

impairment, the ALJ must determine whether the claimant

can perform his past work despite any limitations.

5. If the claimant does not have the residual functional capacity

to perform her past work, the ALJ must decide whether the

claimant can perform any other gainful and substantial work

in the economy. This determination is made on the basis of

the claimant’s age, education, work experience, and residual

functional capacity.

20 C.F.R. § 416.920(b)-(f). See also Williams v. Bowen 844 F.2d 748, 750-52 (10th

Cir. 1988). The claimant has the initial burden of establishing a disability in the first four

steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294

n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show that

the claimant is capable of performing work in the national economy. Id. 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. Secretary of Health & Human Services, 933

F.2d 799, 801 (10th Cir. 1991). 

Review of the Commissioner’s disability decision is limited to determining

whether the ALJ applied the correct legal standard and whether the decision is

supported by substantial evidence. Hamilton v. Secretary of Health and Human

Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194,

1196 (10th Cir. 1990). Substantial evidence is evidence a reasonable mind would

accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires

more than a scintilla but less than a preponderance of the evidence. Hedstrom v.

Sullivan, 783 F.Supp. 553, 556 (D. Colo. 1992). “Evidence is not substantial if it is

overwhelmed by other evidence in the record or constitutes mere conclusion.” 

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Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). Further, “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). 

Although a reviewing court should meticulously examine the record, it may not reweigh

the evidence or substitute its discretion for that of the Commissioner. Id. 

III. LEGAL ANALYSIS

The bases on which plaintiff seeks reversal of the ALJ’s disability decision are not

entirely clear from the briefing submitted on appeal. Plaintiff devotes a substantial

portion of his brief to apprising the court that the medical record supporting his

impairments is limited because plaintiff’s mother refused to pursue treatment for him

after he was diagnosed with Asperger’s disorder at age 11. Although the court is not

unsympathetic to these missives, or to plaintiff’s desire to now develop skills to better

cope with the limitations imposed by his conditions, they do not make out a legal basis

for reversal. Because I perceive no reversible error in the ALJ’s opinion, I affirm.

Contrary to the implication of plaintiff’s argument, it does not appear that the ALJ

simply rejected plaintiff’s claim for lack of medical evidence. Although the medical

record documenting plaintiff’s mental impairments was indeed scanty, the ALJ fulfilled

his duty to develop the record in this regard. See Carter v. Chater, 73 F.3d 1019,

1021 (10th Cir. 1996). He had available to him the reports of two consultative

examiners, Dr. Frederick Leidal (Tr. 248-253), a psychologist, and Lori Frey (Tr. 255-

257), a mental health counselor, as well as the live testimony of a third medical expert,

psychologist Dr. Robert Pelc (tr. 67-77). The ALJ thoroughly reviewed each of these

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 However, the ALJ properly rejected Ms. Frey’s conclusion that plaintiff is “developmentally

disabled” (Tr. 257) as going to an issue reserved exclusively to the Commissioner, 20 C.F.R. §

41.6.927(e), as well as not being defined by specific functional limitations. (Tr. 19.)

5

 Nor can I fault the ALJ for failing to hold the record open following the conclusion of the

administrative hearing, as plaintiff’s attorney explicitly confirmed that she did not anticipate submittiting

additional documents thereafter. (Tr. 30.)

6

medical opinions, which were largely in agreement with one another and confirmed the

conclusion that plaintiff’s impairments were not disabling within the meaning of the Act.4

Plaintiff suggests that the ALJ erred at step 5 of the sequential evaluation

because three of the jobs identified by the vocational expert at the hearing are

precluded by his pain and functional limitations following the implantation of rods in his

back to correct scoliosis and/or limitations imposed by Asperger’s disorder. Yet none of

the three jobs identified by plaintiff in this regard was among those ultimately cited by

the ALJ in making his disability determination. (Compare Plf. Br. at 10 (challenging

plaintiff’s ability to perform jobs of vegetation puller, weed picker, and label inspector)

with Tr. 22 (finding plaintiff capable of performing medium jobs of floor waxer and

sweeper cleaner and light jobs of power screwdriver operator and cleaner

housekeeper).) Clearly, there was no reversible error in this regard.

Relatedly, plaintiff claims that he should have been allowed to submit additional

evidence to the Appeals Council for consideration.5

 Plaintiff does not attach these

documents to his brief, and beyond a very broad and generic description as more recent

records relating to plaintiff’s ongoing medical and psychological conditions, he does not

specify what these inexplicit records contain or, more importantly, how they might have

changed the ALJ’s disability to determination. See Chambers v. Barnhart, 389 F.3d

1139, 1142 (10th Cir. 2004); O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994). 

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6

 In addition, it appears from the limited description provided that these documents do not relate

to the period for which benefits were denied, and thus are not material in any event. See 20 C.F.R. §

416.1470(b).

7

 Indeed, the concept of “backdating” the application appears to be misplaced here. See 20

C.F.R. §§ 416.340 & 416.345. It seems more likely that plaintiff may seek to reopen the prior

determination before the Commissioner at the administrative level, see 20 C.F.R. § 416.1487(b), although

it appears the statute of limitations may well have run on any such application, see 20 C.F.R. §

416.1488(b), unless there is some evidence, not presently apparent from the record before me, that the

determination “was obtained by fraud or similar fault,” 416.1488(c). 

7

Absent such proof, any error in the failure to consider these documents must be

deemed harmless. See Bernal v. Bowen, 851 F.2d 297, 303 (10th Cir. 1988).6 

Finally, plaintiff asks that, at the very least, I backdate his more recent application

for benefits, which is currently still pending review before the agency, to the date of

either his first application (see supra note 2) or the current application. He provides no

legal authority suggesting that I have jurisdiction to consider or issue orders

determinative of an application that is not presently before me. I decline this invitation

to usurp my proper role in the administrative process by doing so in this instance.7

THEREFORE IT IS ORDERED that the conclusion of the Commissioner through

the Administrative Law Judge that plaintiff was not disabled is AFFIRMED.

Dated March 25, 2013, at Denver, Colorado.

BY THE COURT:

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