Zambrano v. Social Security Administration
OPINION AND ORDER by Mag. Judge Kimberly E. West (sjw, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
TAMMY A. ZAMBRANO,
MICHAEL J. ASTRUE,
Commissioner of Social
Case No. CIV-11-064-KEW
OPINION AND ORDER
Plaintiff Tammy A. Zambrano (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 (“ALJ”) and
asserts that the Commissioner erred because the ALJ incorrectly
Commissioner’s decision should be and is REVERSED and REMANDED for
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).
A claimant is disabled under the Social
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
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
first, whether the decision was supported by
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).
standards were applied.
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.”
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
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 was born on May 21, 1963 and was 46 years old at the
time of the ALJ’s decision.
Claimant completed her high school
Claimant worked in the past as a receptionist and
Claimant alleges an inability to work beginning
June 30, 2002 due to limitations resulting from neck, back, and
shoulder pain and other symptoms status post cervical fusion, right
shoulder acromioplasty and debridement, and partial distal clavicle
excision, carpal tunnel syndrome, and reactive airway disease.
disability insurance benefits under Title II (42 U.S.C. § 401, et
seq.) of the Social Security Act.
Claimant’s application was
denied initially and upon reconsideration.
On July 7, 2009, an
administrative hearing was held before ALJ Kim D. Parrish in
On September 22, 2009, the ALJ issued an
On December 22, 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, she did not meet a listing and retained the residual
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
properly evaluate the opinions of a nurse practitioner; and (2)
failing to apply Soc. Sec. R. 83-20.
Evaluation of the Opinions of Nurse Practitioner
consider or discuss the opinion offered by nurse practitioner,
Patricia Owens. Ms. Owens completed a Medical Assessment of Ability
to Do Work-Related Activities (Physical) on Claimant dated June 15,
2009. She determined Claimant could sit (upright but not reclined),
stand, and walk for one hour for each activity in an 8 hour workday.
Ms. Owens found Claimant could not work an 8 hour day at any level,
even with the option to sit or stand alternately and with usual
She further determined Claimant could not lift any weight.
Ms. Owens stated Claimant could not engage in simple grasping,
pushing and pulling of arm controls or engage in fine manipulation
with her right hand and could not engage in fine manipulation with
her left hand.
She found Claimant could not use her feet to push
and stated that Claimant would have to recline every 2 hours for 10
to 20 minutes.
In his decision, the ALJ found Claimant suffered from the
severe impairments of status post cervical and clavicle surgery.
He determined Claimant retained the RFC to perform light
work with the restrictions that she is limited to frequent picking,
The vocational expert testifying in the case
offered that Claimant could perform the jobs of counter clerk,
records clerk, and retail sales clerk.
Based upon these
findings, the ALJ determined Claimant was not disabled from March
6, 1998 through the date of last insured of December 31, 2007.
The ALJ did not discuss Ms. Owens statement which was a part
of the medical record.
Nurse practitioners are not “acceptable
medical sources,” as that term is defined by the regulations.
Nurse-practitioners fall within the category of “other sources” and
are deemed to be “medical sources” who are not “acceptable medical
20 C.F.R. § 416.913(d)(1).
The formulation of Soc. Sec.
R. 06-3p was intended as a clarification of existing regulations.
This ruling states, in pertinent part:
[The existing] regulations provide specific criteria for
evaluating medical opinions from “acceptable medical
sources”; however, they do not explicitly address how to
consider relevant opinions and other evidence from “other
sources” listed in 20 C.F.R. 404.1513(d) and 416.913(d).
With the growth of managed health care in recent years
and the emphasis on containing medical costs, medical
sources who are not “acceptable medical sources,” such as
nurse practitioners, physician assistants, and licensed
clinical social workers, have increasingly assumed a
greater percentage of the treatment and evaluation
functions previously handled primarily by physicians and
psychologists. Opinions from these medical sources . . .
are important and should be evaluated on key issues such
as impairment severity and functional effects, along with
the other relevant evidence in the file.
In order to effectuate this express policy, the ALJ should
discuss these “other sources” and explain the weight given to any
Bowman v. Astrue, 512 F.3d 1270, 1275 (10th Cir.
On remand, the ALJ shall consider the opinion of Ms. Owens,
set forth the weight given to her opinion, and explain the reasons
for the level of weight provided.
Application of Soc. Sec. R. 83-20
Claimant contends that the lack of evidence after the year 2000
but prior to the date of last insured should compel the ALJ to
determine if Claimant is disabled at any point and employ a medical
advisor to determine if the disability related to the insured
Soc. Sec. R. 83-20 provides, in pertinent part:
With slowly progressive impairments, it is sometimes
impossible to obtain medical evidence establishing the
precise date an impairment became disabling. . . . In
such cases, it will be necessary to infer the onset date
from the medical and other evidence that describe the
history and symptomatology of the disease process.
Particularly in the case of slowly progressive
impairments, it is not necessary for an impairment to
have reached listing severity (i.e, be decided on medical
grounds alone) before onset can be established.
In determining the date of onset of disability, the date
alleged by the individual should be used if it is
consistent with all the evidence available. When the
medical or work evidence is not consistent with the
allegation, additional development may be needed to
reconcile the discrepancy.
However, the established
onset date must be fixed based on the facts and can never
be inconsistent with the medical evidence of record.
On remand, the ALJ shall consider whether Claimant was ever
disabled, in particular in light of Ms. Owens’ opinions, and
determine whether Claimant’s condition was non-traumatic in origin
and progressive in nature such that addition medical advice is
required to ascertain whether the disability extended into the
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
DATED this 27th day of March, 2012.
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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