Roberts v. Social Security Administration

Filing 21

OPINION AND ORDER by Mag. Judge Kimberly E. West (sjw, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
TONY M. ROBERTS,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security Administration,
Defendant.

Case No. CIV-10-309-KEW

OPINION AND ORDER

Plaintiff Tony M. Roberts (the “Claimant”) requests judicial
review of the decision of the Commissioner of the Social Security
Administration (the “Commissioner”) denying Claimant’s application
for disability benefits under the Social Security Act.

Claimant

appeals the decision of the Administrative Law Judge (“ALJ”) and
asserts that the Commissioner erred because the ALJ incorrectly
determined

that

discussed

below,

Claimant
it

is

was
the

not

disabled.

finding

of

this

For

the

Court

reasons

that

the

Commissioner’s decision should be and is REVERSED and REMANDED for
further proceedings.
Social Security Law and Standard of Review
Disability under the Social Security Act is defined as the
“inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment. . .”

42 U.S.C. § 423(d)(1)(A).
Security

Act

“only

if

A claimant is disabled under the Social
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

§423(d)(2)(A).

in

the

national

economy.

.

.”

42

U.S.C.

Social Security regulations implement a five-step

sequential process to evaluate a disability claim.

See, 20 C.F.R.

§§ 404.1520, 416.920.1
Judicial review of the Commissioner’s determination is limited
in scope by 42 U.S.C. § 405(g).
two inquiries:

This Court’s review is limited to

first, whether the decision was supported by

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Step one requires the claimant to establish that he is not
engaged in substantial gainful activity, as defined by 20 C.F.R. §§
404.1510, 416.910. Step two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that
significantly limit his ability to do basic work activities. 20 C.F.R.
§§ 404.1521, 416.921. If the claimant is engaged in substantial gainful
activity (step one) or if the claimant’s impairment is not medically
severe (step two), disability benefits are denied. At step three, the
claimant’s impairment is compared with certain impairments listed in 20
C.F.R. Pt. 404, Subpt. P, App. 1. A claimant suffering from a listed
impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry.
If not, the
evaluation proceeds to step four, where claimant must establish that he
does not retain the residual functional capacity (“RFC”) to perform his
past relevant work.
If the claimant’s step four burden is met, the
burden shifts to the Commissioner to establish at step five that work
exists in significant numbers in the national economy which the claimant
– taking into account his age, education, work experience, and RFC – can
perform. Disability benefits are denied if the Commissioner shows that
the impairment which precluded the performance of past relevant work does
not preclude alternative work. See generally, Williams v. Bowen, 844
F.2d 748, 750-51 (10th Cir. 1988).

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substantial

evidence;

and,

standards were applied.

second,

whether

the

correct

legal

Hawkins v. Chater, 113 F.3d 1162, 1164

(10th Cir. 1997)(citation omitted). The term “substantial evidence”
has been interpreted by the United States Supreme Court to require
“more than a mere scintilla.

It means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”
Richardson

v.

Perales,

402

U.S.

389,

401

(1971)

(quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

The

court may not re-weigh the evidence nor substitute its discretion
for that of the agency.

Casias v. Secretary of Health & Human

Servs., 933 F.2d 799, 800 (10th Cir. 1991). Nevertheless, the court
must review the record as a whole, and the “substantiality of the
evidence must take into account whatever in the record fairly
detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951); see also, Casias, 933 F.2d at 800-01.
Claimant’s Background
Claimant was born on June 2, 1956 and was 53 years old at the
time of the ALJ’s decision.

Claimant completed his education

through the tenth grade. Claimant worked in the past as a carpenter
and a house painter.
beginning

April

1,

Claimant alleges an inability to work
1998

due

to

limitations

resulting

degenerative disc disease in his lumbar spine and depression.

3

from

Procedural History
On May 12, 2008, Claimant protectively filed for supplemental

security income pursuant to Title XVI (42 U.S.C. § 1381, et seq.)
of the Social Security Act.
initially

and

upon

Claimant’s application was denied

reconsideration.

On

August

7,

2009,

an

administrative hearing was held before ALJ Osly F. Deramus in
McAlester,

Oklahoma.

On

March

19,

2010,

the

unfavorable decision on Claimant’s application.

ALJ

issued

an

On July 16, 2010,

the Appeals Council denied review of the ALJ’s decision.

As a

result, the decision of the ALJ represents the Commissioner’s final
decision for purposes of further appeal.

20 C.F.R. §§ 404.981,

416.1481.
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential
evaluation. He determined that while Claimant suffered from severe

impairments, he did not meet a listing and retained the residual
functional

capacity

(“RFC”)

to

perform

light

work

with

some

limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to find
Claimant met a listing at step three; and (2) alternatively,
reaching an RFC which is not supported by substantial evidence.

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Step Three Evaluation
Claimant contends he met the criteria for Listing 1.04A and
that the ALJ erred by failing to find so at step three of the
sequential evaluation. In his decision, the ALJ determined Claimant
suffered from the severe impairments of back pain and affective mood
disorder.

(Tr. 10).

The ALJ considered the application of Listing

12.04 but concluded the medical evidence did not indicate Claimant
met that listing.

(Tr. 11).

The ALJ found Claimant retained the

RFC to perform light work except only occasional stooping, frequent
crouching, crawling, kneeling, or balancing, frequent climbing
stairs and ladders, and no reaching overhead with his right arm.
He also determined that due to psychological limitations, Claimant
has some limitations but can understand and perform simple tasks and
some complex tasks, can interact with others at a superficial basis
but not with the general public, and can adapt to a work situation.
(Tr. 12).

Based upon the testimony of the vocational expert

testifying in the case, the ALJ concluded Claimant could perform the
unskilled job of cleaner/housekeeper.

(Tr. 17).

As Claimant states in his brief, the ALJ did not reference in
his decision that he considered applying Listing 1.04A in Claimant’s
case.

Listing 1.04A requires certain factual findings be present,

in stating:

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Disorders of the spine (e.g., herniated nucleus pulposus,
spinal arachnoiditis, spinal stenosis, osteoarthritis,
degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root
(including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion
of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower
back, positive straight-leg raising test (sitting and
supine) . . .
20 C.F.R. Pt. 404, Subpt. P, App. I § 1.04A.
For a claimant to demonstrate that an impairment meets a
listing, “it must meet all of the specified medical criteria.

An

impairment that manifests only some of those criteria, no matter
how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521,
530

(1990).

The

evidence

indicates

Claimant

suffered

degenerative disc disease of the lumbar spine at L5-S1.

from

(Tr. 253).

Claimant underwent surgery on January 22, 2002 to correct spinal
stenosis.

The surgery consisted of bilateral central and foraminal

decompressions at L4-5 and L5-S1.

(Tr. 441).

A June 21, 2002 MRI indicated desiccation and mild narrowing
with mid diffuse bulging at L3-4.

It also revealed minimal facet

degeneration at L4-5 bilaterally and bilateral spondylolysis defects
at L5, more prominent on the right. Claimant had probable posterior
epidural scarring at L5-S1.

Residual diffuse disc bulging with

right-sided disc narrowing was noted resulting in moderate to severe

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right foraminal stenosis with “probable impingement on the right L5
nerve.”

Milder left foraminal stenosis was seen.

(Tr. 520-21).

An MRI from July 18, 2003 demonstrated a new tiny right
foraminal disc protrusion at L2-3. The L3-4 disc was desiccated and
narrowed with a stable mild disc bulge flattening the thecal sac.
Disc narrowing and desiccation at L5-S1 was noted with a stable
residual annular disc bulge at this level and an endplate spur which
caused mild left and moderate to severe right L5 neuroforamina
narrowing, “with probable impingement of the exiting right L5 nerve
root.”

(Tr. 522-23).

On November 11, 2002, Claimant continued to report intermittent
radicular pain.

(Tr. 471).

Additionally, Claimant experienced

significant decreased range of motion in his lumbar spine in
examinations from January of 2004 and August of 2006, during a
consultative examination in July of 2005.
32).

(Tr. 186-89, 289, 529-

This included a finding of positive supine straight leg

raising on the right at approximately 30 degrees.

(Tr. 531).

Claimant

his

also

extremities

demonstrated

and

the

examiner

decreased
was

unable

patellar and ankle reflexes bilaterally.
On

July

Nussbaum.

15,

2005,

Claimant

strength

was

to

in

elicit

lower

Claimant’s

(Tr. 529-32).
evaluated

by

Dr.

Steven

Dr. Nussbaum determined Claimant had significantly

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decreased lumbar spine extension at 10 degrees.

He also found

Claimant showed decreased lumbar spine flexion of 75 degrees and
decreased lateral lumbar spine bending by 5 degrees bilaterally.
(Tr. 186-89).
On July 12, 2008, Claimant was also evaluated by Dr. Lauren
Devoe.

Claimant reported back pain radiating down his right leg.

Dr. Devoe found Claimant to have decreased deep tendon reflexes at
his knees and ankles with decreased range of motion in his lumbar
spine.

Claimant was unable to walk on his heels or toes for more

than two steps due to pain.

Claimant had positive straight leg

raising bilaterally in both the supine and sitting positions.

(Tr.

390-96).
Significant evidence indicates Claimant may meet the criteria
for Listing 1.04A.

Contrary to Defendant’s arguments, the fact a

considerable amount of the evidence relates to a time outside of the
relevant period does not lessen the obligation for the ALJ to at
least

consider

whether

the

progressive

nature

of

Claimant’s

degenerative condition relates back to the relevant period.
v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).

Hamlin

Moreover, it is

unclear to this Court that the ALJ even considered this listing in
his evaluation, having only specifically identified the mental
health listing in his decision.

On remand, the ALJ shall evaluate

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the medical evidence to ascertain whether Claimant has satisfied his
burden of establishing he meets Listing 1.04A.
Because Claimant argues the second issue of whether the RFC was
correctly reached as an alternative argument, this Court will not
address it further at this time.
Conclusion
The

decision

of

the

Commissioner

is

not

supported

by

substantial evidence and the correct legal standards were not
applied. Therefore, this Court finds, in accordance with the fourth
sentence of 42 U.S.C. § 405(g), the ruling of the Commissioner of
Social Security Administration should be and is

REVERSED and the

matter REMANDED for further proceedings consistent with this Opinion
and Order.
DATED this 27th day of March, 2012.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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