Bain v. Social Security Administration
Filing
21
OPINION AND ORDER by Magistrate Judge Kimberly E. West (sjw, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
DERRICK L. BAIN,
Plaintiff,
v.
Case No. CIV-10-377-KEW
MICHAEL J. ASTRUE,
Commissioner of Social
Security Administration,
Defendant.
OPINION AND ORDER
Plaintiff Derrick L. Bain (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.
appeals the decision of the Administrative Law Judge
Claimant
("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,
work
which
engage in any other kind of substantial gainful
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).
This Court's review is limited to
1
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 (lOth Cir. 1988).
2
two
inquiries:
substantial
first,
evidence;
whether
and,
standards were applied.
the
second,
Hawkins v.
(1Oth Cir. 19 9 7) ( citation omitted) .
decision
whether
Chater,
was
the
supported
correct
by
legal
113 F.3d 1162,
1164
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,
u.s.
4 02
401
305 U.S.
Consolidated Edison Co. v. NLRB,
389,
197,
(1971)
(quoting
229 {1938)).
The
court may not re-weigh the evidence nor substitute its discretion
for that of the agency.
Casias v.
Secretary of Health
Servs., 933 F.2d 799, 800 (10th Cir. 1991).
&
Human
Nevertheless, the court
must review the record as a whole, and the "substantiality of the
evidence must
take
into
detracts from its weight."
account
whatever
in
the
record
fairly
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 August 15, 1964 and was 45 years old at
the time of the ALJ's decision.
Claimant completed his high school
education and took approximately one year of college.
worked in the past as a cook.
beginning
March
5,
2007
Claimant
Claimant alleges an inability to work
due
to
3
limitations
resulting
from
degenerative disc disease.
Procedural History
On March 5,
2007, Claimant protectively filed for disability
insurance benefits under Title II (42 U.S.C.
§
401, et seq.) and for
supplemental security income pursuant to Title XVI
1381, et seq.) of the Social Security Act.
Tulsa,
Oklahoma.
unfavorable
On
decision.
§
Claimant's applications
were denied initially and upon reconsideration.
an administrative hearing was
{42 U.S.C.
On July 27, 2009,
held before ALJ Lantz McClain in
December
16,
On August
2009,
2010,
19,
denied review of the ALJ's decision.
the
ALJ
issued
an
the Appeals Council
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 a full range of light work
with limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to find
Claimant's
condition meets
a
listing;
4
( 2)
failing
to perform a
proper
step
5
analysis;
and
(3)
failing
to
perform
a
proper
credibility analysis.
Listing § 1.04A
Claimant
contends
the
ALJ
failed
to
analyze
the
medical
evidence to determine whether Claimant met Listing§ 1.04A.
In his
decision,
severe
the ALJ determined Claimant
suffered
from the
impairments of degenerative disc disease, depression, and low IQ.
(Tr.
17).
He concluded Claimant could perform light work except
that he could occasionally lift and/or carry 20 pounds, frequently
lift and/or carry 10 pounds, stand and/or walk at least 6 hours out
of an 8 hour workday, sit at least 6 hours in an 8 hour workday,
occasionally stoop and avoid work above shoulder level, and perform
only simple and repetitive tasks with only incidental contact with
the public.
(Tr. 18).
Based upon this RFC and the testimony of a
vocational expert, the ALJ found Claimant could perform the jobs of
housekeeper and bench assembler.
Claimant
Listing §
contends
the
{Tr. 25).
ALJ
only
eyaluated
him
for
meeting
12.04 but should have also evaluated him for meeting
Listing§ 1.04A.
Listing 1.04A requires certain factual findings be
present, in stating:
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
5
(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
For
a
listing,
claimant
to
demonstrate
§
that
1.04A.
an
impairment meets
must meet all of the specified medical criteria.
~it
a
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 medical
evidence reveals Claimant suffers
stenosis and cervical radiculopathy.
was
found
at
CS-6.
The disc
(Tr. 183).
from foramen
A degenerated disc
spaces narrowed with osteophytes
anteriorly
and circumferentially with projection of
dorsally.
Foramina stenosis on the left side of CS-6 was also
noted.
osteophytes
Claimant also was found to have hypertrophy of articular
processes with normal alignment and no fractures.
(Tr. 197).
In an MRI from June 1, 2007, Claimant was diagnosed with mild
cervical kyphosis, mild to moderate degenerative disc disease at C45, CS-6, and C6-7, ventral extradural defects at C4-5, C5-6, and C67 compatible with a combination of annular disc bulging and ventral
bony ridging extending into uncovertebral joint spurs bilaterally.
6
At C4-5, there was a focal asymmetric extradural defect extending
right to midline suggestive of right paramedian disc protrusion
abutting the exiting nerve root.
At C5-6, the canal was narrowed to
approximately 8 mm with bilateral neural exiting foraminal stenosis
due to bony ridging and uncovertebral joint spurring.
At C6-7, the
canal was also narrowed to 8-9 mm with minimal cord compression but
no cord myelomalacia.
Further,
No extruded disc fragments
were noted.
the craniocervical junction was normal and there was no
pathologic marrow signal intensity arising from the vertebral bodies
that would suggest bony metastatic disease or healing trauma.
(Tr.
232) .
Sufficient
evidence
exists
Claimant might meet Listing
§
in
the
record
to
suggest
that
1.04A, although some question as to
whether Claimant suffers from nerve root compression is present.
The
ALJ
Listing.
should
have
evaluated
Claimant's
condition
under
this
On remand, the ALJ shall do so.
Step Five Analysis
Claimant
also
contends
the
ALJ
posed
faulty
hypothetical
questions to the vocational expert because they did not include a
hand
limitation.
The
medical
record
to
which
Claimant
refers
largely indicates reduced strength from his shoulder injury.
{Tr.
123,
Some
181,
235-36,
252,
284,
328,
7
331,
377,
389,
409-10}.
reduction in grip strength was noted in a record from April 16,
2007.
(Tr. 138).
Additionally, Claimant attaches a report from Dr.
Jimmie W. Taylor from a consultative examination on May 3, 2007 to
his initial brief.
March 9, 2012).
(Exhibit "A" to Plaintiff's Opening Brief filed
No explanation is made as to why this report is not
contained in the medical record submitted by Defendant and Defendant
does not reference this report in its responsive brief or object to
its consideration by this Court in this appeal.
Dr. Taylor found
Claimant's grip strength to be 3/5, bilaterally.
His dexterity is
noted at 5/5, bilaterally, with Dr. Taylor stating that "patient can
handle small objects adequately except for weak grip."
Claimant
suggests that the jobs identified by the vocational expert require
significant handling and manipulation which would be precluded by
his limitations.
strength
when
This Court is unclear as to whether reduced grip
his
dexterity
and
manipulative
ability
is
not
compromised would eliminate the jobs identified by the vocational
expert.
Since the ALJ did not present the possibility of reduced
grip strength or apparently Dr. Taylor's report, the matter should
be reconsidered on remand.
Credibility Analysis
Claimant challenges the ALJ's use of "boilerplate" language to
call into question Claimant's credibility.
8
It is well-established
that "findings as to credibility should be closely and affirmatively
linked to substantial evidence and not just a conclusion in the
guise of findings."
1995).
Kepler v. Chater, 68 F.3d 387, 391 (lOth Cir.
"Credibility determinations are peculiarly in the province
of the finder of fact" and,
as such, will not be disturbed when
supported by substantial evidence.
assessing a
daily
Id.
Factors to be considered in
claimant's credibility include
activities;
(2)
the
location,
(1)
the
duration,
frequency,
intensity of the individual's pain or other symptoms;
that precipitate and aggravate the symptoms;
individual's
{3)
and
factors
(4) the type, dosage,
effectiveness,
and side effects of any medication the individual
takes
taken
or
treatment,
has
to
alleviate
other than medication,
pain
or
other
symptoms;
( 5)
the individual receives or has
received for relief of pain or other symptoms;
( 6)
any measures
other than treatment the individual uses or has used to relieve pain
or other symptoms (e.g., lying flat on his or her back, standing for
15 to 20 minutes every hour, or sleeping on a board); and (7} any
other factors concerning the individual's functional limitations and
restrictions due to pain or other symptoms.
Soc. Sec. R.
96-7p;
1996 WL 374186, 3.
An ALJ cannot satisfy his obligation to gauge a claimant's
credibility by merely making conclusory
9
findings
and must
give
reasons for the determination based upon specific evidence.
68 F.3d at 391.
However, it must also be noted that the ALJ is not
~formalistic
required to engage in a
the evidence."
2000) .
The
Kepler,
Qualls v.
ALJ
is
Apfel,
not
clear
factor-by-factor recitation of
206 F.3d 1368,
as
to
which
1372
(lOth Cir.
statements
within
Claimant's testimony he considers suspect and which he will accept.
On
remand,
the
ALJ
shall
reassess
Claimant's
statements
and
specifically set forth those which he considers to be not supported
by the medical record.
Conclusion
The
decision
substantial
applied.
of
evidence
the
and
Commissioner
the
correct
is
legal
not
supported
standards
were
by
not
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.
IT IS SO ORDERED
~
this~
day of July, 2012.
r
JUDGE
10
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