Armer v. Social Security Administration
Filing
26
OPINION AND ORDER by Magistrate Judge Kimberly E. West (sjw, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
ROGER W. ARMER,
)
)
Plaintiff,
)
)
v.
Case No. CIV-11-292-KEW
)
)
)
MICHAEL J. ASTRUE,
Commissioner of Social
Security Administration,
)
)
)
)
Defendant.
OPINION AND ORDER
Plaintiff Roger W. Armer (the "Claimant")
requests judicial
review of the decision of the Commissioner of the Social Security
Administration (the "Commissioner 11 ) denying Claimant's application
for disability benefits under the Social Security Act.
Claimant
appeals the decision of the Administrative Law Judge ( ''ALJ 11 )
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
1
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.
§§
II
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 1 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 1 Subpt. P 1 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 1 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 1 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
whether the
1
evidence i
and,
Cir.
whether
supported by
the
correct
legal
Hawkins v. Chater, 113 F.3d 1162, 1164
standards were applied.
(lOth
second,
decision was
1997) (citation
The
omitted).
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.
Edison
Co.
v.
NLRB
389, 401
(quoting
Consolidated
(1938)).
The court may not re-weigh the evidence nor substitute
its discretion for that of the agency.
Health
& Human
Servs.
1
933
F.2d
799,
305
1
U.S.
(1971)
Casias v.
800
(lOth
197,
229
Secretary of
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."
Corp. v. NLRB 1 340 U.S. 474, 488 {1951)
i
Universal Camera
see also, Casias, 933 F.2d
at 800-01.
Claimant's Background
Claimant was born on February 25, 1957 and was 52 years old at
the time of the ALJ s decision.
1
education.
welder,s
Claimant completed his high school
Claimant worked in the past as a lime kiln operator,
helper,
and
some
part
3
time work
as
a
boat
builder.
Claimant alleges an inability to work beginning February 1, 2006
due to limitations resulting from a club foot.
Procedural History
On July 20, 2007, Claimant protectively filed for disability
insurance benefits under Title II
(42 U.S.C.
§
401, et seq.) and
supplemental security income pursuant to Title XVI
1381, et seq.) of the Social Security Act.
(42 U.S.C.
§
Claimant's applications
were denied initially and upon reconsideration.
On May 19, 2009,
an administrative hearing was held before ALJ Richard Kallsnick in
Tulsa, Oklahoma.
On June 22
1
2009, the ALJ issued an unfavorable
decision.
On July 14, 2011, the Appeals Council denied review of
the
decision.
ALJ's
represents
the
further appeal.
As
a
result
Commissioner's
20 C.F.R.
§§
1
final
the
decision
decision
for
of
the
purposes
ALJ
of
404.981 1 416.1481.
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
11
)
to perform a full range of light work.
Errors Alleged for Review
Claimant ·asserts the ALJ committed error in
(1)
failing to
consider the vocational impact of all of Claimant's impairments;
4
(2) failing to consider a 2009 x-ray medical opinion;
to
discuss
the
2009
x-ray medical
(3) failing_
opinion evidence which was
significantly probative; (4) rejecting the opinion of the reviewing
radiologist of the 2009 x-ray; (5) engaging in a faulty credibility
determination; and (6) failing to develop the record with regard to
the limitations imposed by Claimant S foot impairment.
1
Consideration 2009 X-Ray
In his decision,
the ALJ found Claimant suffered from the
severe impairment of clubfeet.
(Tr. 15) .
He determined Claimant
retained the RFC to perform a full range of light work, finding-he
could
lift
20
pounds
occasionally
and
10
pounds
frequently,
stand/walk or sit for 6 hours in an 8 hour workday, had use of his
hands and feet
for operation of controls,
experienced mild to
moderate pain, could remain attentive in a work setting and carry
out work assignments, and took medication but remained sufficiently
alert.
ALJ
(Tr. 16).
determined
After consultation with a vocational expert, the
Claimant
retained
representative jobs of ticket seller
collector, and bench hand.
not disabled.
1
the
RFC
to
perform
sewing machine operator
(Tr. 18).
1
the
toll
He concluded Claimant was
(Tr. 18-19).
All of Claimant's allegations of error surround the ALJ' s
consideration or lack of consideration of a 2009 x-ray of his feet.
5
On April 29 1 2009, an x-ray of Claimant s left foot and ankle at
1
the direction of his physician 1 Dr. Michael Wyly.
reviewed by Dr. Thomas L. Harrison.
The x-ray was
Dr. Harrison interpreted the
three views of the foot and found ankylosis of the talus, calcaneus
and navicular bones were identified.
Degenerative joint disease was
pes planus deformity was noted.
involved in the
periosteal
mid foot.
reaction
proximal phalanx.
possible
fusion
There was
adjacent
to
the
Dr. Harrison s
1
of
the
osteopenia, pes planus
The bones were osteopenic and
talus 1
a
mid
question of
shaft
of
a
subtle
the
second
impression was ankylosis with
calcaneus
and
navicular
bones,
possible healing fracture mid shaft of the
1
second proximal phalanx and degenerative joint disease of the mid
foot.
(Tr. 2 90) .
Defendant admits the ALJ did not reference this x-ray study in
his decision.
on
his
feet
The ALJ noted Claimant underwent multiple surgeries
beginning
in his
childhood.
He
found
that
the
consultative examination on Claimant performed by Dr. Kurella found
no clubbing,
cynanosis
Claimant's clubfeet.
1
edema
1
or neurological deficits due to
He noted Claimant 1 s dorsi-inversion of his
feet was normal with no obvious risk of falling while walking.
The
ALJ did acknowledge significant restriction in range of motion of
Claimant's ankles.
He did not require an assistive device.
17) .
6
(Tr.
The record must demonstrate that the ALJ considered all of the
evidence, including the uncontroverted evidence he chooses not to
rely upon, as well as significantly probative evidence he rejects.
Clifton v. Chater,
79 F. 3d 1007, 1009-10
(lOth Cir. 1996).
Not
only was the 2009 x-ray probative and could potentially impact
Claimant's RFC but was also more recent than the 2007 evaluation of
Dr. Kurella or the 2005 last x-ray performed on Claimant's feet.
On
remand,
the
ALJ
shall
consider
the
2009
x-ray
and
its
interpretation by Dr. Harrison.
Credibility Deter.mination
Claimant also contends the ALJ failed to properly evaluate his
credibility.
The
ALJ
was
skeptical
of
Claimant's
claims
of
limitations and pain because no treating source imposed functional
restrictions upon him based upon the effects of his clubfoot.
also did not
He
find that Claimant's assertions of pain were not
substantiated by objective medical evidence.
(Tr. 16).
The ALJ
accurately set forth Claimant's testimony concerning his pain and
restrictions upon his daily living.
Id .
. 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."
F.3d 387, 391
Kepler v. Chater, 68
"Credibility determinations are
(lOth Cir. 1995).
7
peculiarly in the province of the finder of fact 11 and, as such,
will not be disturbed when supported by substantial evidence.
Factors to be considered in assessing a
include (1)
duration,
other symptomsi
symptomsi
claimant's credibility
the individual's daily activitiesi
frequency,
(3)
Id.
(2) the location,
and intensity of the individual s pain or
1
factors that precipitate and aggravate the
(4) the type 1 dosage/ effectiveness, and side effects of
any medication the individual takes or has taken to alleviate pain
or
other
symptomsi
(5)
treatment/
other
than
medication,
the
individual receives or has received for relief of pain or other
symptomsi (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,
sleeping on a board)i
and
(7)
or
any other factors concerning the
individual's functional limitations and restrictions due to pain or
other symptoms.
Soc. Sec. R. 96-7pi 1996 WL 374186, 3.
While the ALJ did relate Claimant's testimony,
he did not
identify the specific objective medical evidence which he finds
contradicted that testimony.
Moreover, the ALJ employed the highly
questionable but oft-cited boilerplate language suggesting the ALJ
predetermined Claimant's RFC before considering the credibility of
his statements and the impact those statements might have upon his
RFC.
On
remand,
the
ALJ
shall
8
fulfill
his
obligation
to
affirmatively link his findings on credibility with the objective
medical record - and avoid the improper boilerplate findings.
Conclusion
The
decision
substantial
applied.
fourth
of
the
Commissioner
evidence and the
Therefore/
sentence
of
this
42
correct
Court
U.S.C.
finds
§
is
legal
1
not
supported
by
standards were
not
in accordance with the
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
C&~ay
of March, 2013.
JUDGE
9
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