Rees v. Social Security Administration
OPINION AND ORDER by Magistrate Judge Steven P. Shreder reversing and remanding the decision of the ALJ (dma, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
TIM M. REES,
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Case No. CIV-11-399-SPS
OPINION AND ORDER
The claimant Tim M. Rees requests judicial review of a denial of benefits by the
Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g). The
claimant appeals the Commissioner’s decision and asserts that the Administrative Law
Judge (“ALJ”) erred in determining he was not disabled. As discussed below, the
Commissioner’s decision is REVERSED and the case REMANDED to the ALJ 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
Security Act “only if his physical or mental impairment or impairments are of such
On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social
Security. In accordance with Fed. R. Civ. P. 25(d), Ms. Colvin is substituted for Michael J.
Astrue as the Defendant in this action.
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 in the national economy[.]” Id. § 423 (d)(2)(A). Social security regulations
implement a five-step sequential process to evaluate a disability claim. See 20 C.F.R. §§
Section 405(g) limits the scope of judicial review of the Commissioner’s decision
to two inquiries: whether the decision was supported by substantial evidence and whether
correct legal standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th
Cir. 1997). Substantial evidence is “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). See also Clifton v. Chater, 79 F.3d 1007, 1009 (10th
Cir. 1996). The Court may not reweigh the evidence or substitute its discretion for the
Commissioner’s. See Casias v. Secretary of Health & Human Services, 933 F.2d 799,
800 (10th Cir. 1991). But the Court must review the record as a whole, and “[t]he
Step one requires the claimant to establish that he is not engaged in substantial gainful
activity. Step two requires the claimant to establish that he has a medically severe impairment (or
combination of impairments) that significantly limits his ability to do basic work activities. If the
claimant is engaged in substantial gainful activity, or his impairment is not medically severe,
disability benefits are denied. If he does have a medically severe impairment, it is measured at
step three against the listed impairments in 20 C.F.R. Part 404, Subpt. P, App. 1. If the claimant
has a listed (or “medically equivalent”) impairment, he is regarded as disabled and awarded
benefits without further inquiry. Otherwise, the evaluation proceeds to step four, where the
claimant must show that he lacks the residual functional capacity (RFC) to return to his past
relevant work. At step five, the burden shifts to the Commissioner to show there is significant
work in the national economy that the claimant can perform, given his age, education, work
experience and RFC. Disability benefits are denied if the claimant can return to any of his past
relevant work or if his RFC does not preclude alternative work. See generally Williams v. Bowen,
844 F.2d 748, 750-51 (10th Cir. 1988).
substantiality of 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.
The claimant was born on March 12, 1963 and was forty-six years old at the time
of the administrative hearing. He earned his GED and has past relevant work as a tow
truck driver and welder (Tr. 30). The claimant alleges that he has been unable to work
since December 18, 2003, because of a broken ankle and shoulder and knee and neck
pain (Tr. 70-71).
The claimant applied on July 14, 2004 for disability insurance benefits under Title
II of the Social Security Act, 42 U.S.C. §§ 401-434, and for supplemental security
income payments under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85. His
applications were denied. ALJ Lantz McClain determined that the claimant was not
disabled in a written opinion dated May 11, 2010 (Tr. 40-51).
That decision was
remanded by the Honorable Frank H. Seay of the Eastern District of Oklahoma. In the
meantime, the claimant filed a second application for disability insurance benefits under
Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and for supplemental security
income payments under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85.
Those applications resulted in a favorable decision. A second administrative hearing was
conducted in the instant case, and ALJ Osly F. Deramus again determined that the
claimant was not disabled in a written opinion dated July 30, 2009. The Appeals Council
denied review, so that opinion represents the Commissioner’s final decision for purposes
of this 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 found that
the claimant has the ability to perform light work as defined in 20 C.F.R. §§ 404.1567(b);
416.927(b), but that claimant would need to avoid work above shoulder level (Tr. 425).
The ALJ also found that the claimant could only occasionally bend and stoop (Tr. 425).
Due to mental impairments, the ALJ found that the claimant was moderately limited, but
capable of functioning satisfactorily in interacting with the general public and interacting
appropriately with the public. Further, the ALJ found that the claimant was severely
limited, but not precluded, from responding properly to work pressure in the usual work
setting (Tr. 425). While the ALJ found that the claimant was not capable of performing
his past relevant work, the ALJ found that there was other work in the national economy
that claimant is capable of performing, i. e., center punch operator and assembler (Tr.
The claimant contends that the ALJ erred: i) by ignoring an award of benefits on
the claimant’s second application as evidence for the applications at issue here; ii) by
failing to perform a proper step five determination, and iii) by failing to properly analyze
the claimant’s credibility.
The undersigned finds the claimant’s first contention
The claimant’s alleged disability arose from a work accident occurring on
December 18, 2003, in which a 1200 pound trailer fell on him, catching his foot and
impacting his left shoulder, right knee, and left foot and ankle (Tr. 117). By April 1,
2004, Dr. David de le Garza stated that claimant was capable of returning to “light duty
work where he wouldn’t be on his feet for too long during the day and can answer
telephones and do some mild clerical type work” (Tr. 115). When the claimant filed his
second application for benefits, the Social Security Administration referenced Dr. de la
Garza’s findings in an RFC assessment where the state physician determined that the
claimant was capable of standing/walking for less than two hours in an eight-hour
workday (Tr. 408-11).
Based on that RFC assessment, the Social Security
Administration found that claimant was disabled beginning July 20, 2006, as he could not
perform even sedentary work (Tr. 408-11). At the second administrative hearing in this
case, which was held on June 23, 2009, claimant’s attorney raised the issue of the RFC
assessment in the second application as material evidence that should be considered in
the instant case, arguing that it relied (at least in part) on the findings of claimant’s
orthopedic surgeon Dr. de la Garza dated April 1, 2004 which was within the time period
at issue in this case (Tr. 485).
The ALJ acknowledged in his opinion that the claimant had filed a second
application for disability insurance benefits and supplemental security income payments
(Tr. 419). The ALJ likewise acknowledged that the second application had been
approved, and the claimant had been adjudicated disabled beginning July 20, 2006 (Tr.
419). He summarized the claimant’s testimony and medical evidence, but found that the
claimant was not disabled during the relevant time period, i. e., December 18, 2003
through July 19, 2006. In making this decision the ALJ erroneously failed to consider the
RFC assessment from the second application, which clearly references Dr. de la Garza’s
April 1, 2004 opinion to arrive at the conclusion that the claimant could stand/walk for
less than two hours in an eight-hour workday (Tr. 408). The Court finds that the RFC
assessment at issue in this case “bear[s] directly and substantially on the matter in
dispute” and “there is a ‘reasonable possibility that the new evidence would have
changed the outcome of the . . . determination.’” Lively v. Astrue, 2012 WL 764463, *1
(D. Colo. Mar. 8, 2012), quoting Browning v. Astrue, 2010 WL 1511667, at *10 (D. Ariz.
April 15, 2010) [unpublished opinion]. See also, Chamblin v. Astrue, 2010 WL 3843031,
at *3 (D. Colo. Sept. 24, 2010) (finding medical evidence supporting a finding of
disability on a subsequent disability application constituted new and material evidence
because “the more recent application was granted based in part on the same consultative
examination” that was in the record on the case at issue where the ALJ found no
disability) [unpublished opinion]; Wetselline v. Astrue, 2008 WL 1994930, at *2 (W.D.
Okla. May 5, 2008) (finding that the medical evidence presented in support of a
subsequent application should have been considered in the case at issue as it constituted
new and material evidence under 42 U.S.C. § 405(g)) [unpublished opinion].
claimant has also shown good cause for the failure to incorporate this evidence into the
record in the proceedings before the ALJ in this case (Tr. 406-07) (“Counsel for the
Claimant pointed out to the Administrative Law Judge that this RFC was relied on by the
Social Security Administration in the second application and that it was based on medical
findings and tests performed in 2004. Counsel also asked that the RFC . . . in the second
application be included in the record. . . . On August 24, 2009, the undersigned faxed
and sent a certified letter requesting a thirty day extension and that the Social Security
Administration send to counsel the contents and medical records, including the RFC, in
the second file and that be incorporated in the record. . . . However, the Social Security
Administration never complied or even responded to this request.”). The Court therefore
finds that the RFC assessment from the second application constitutes new and “material”
evidence under 42 U.S.C. § 405(g) that should have been considered by the ALJ in this
For the reasons set forth above, the undersigned Magistrate Judge concludes that
the decision of the Commissioner should be reversed and the case remanded to the ALJ.
If such analysis results in any adjustments to the claimant’s RFC, the ALJ should redetermine what work the claimant can perform, if any, and ultimately whether she is
In summary, the undersigned Magistrate Judge finds that the decision of the
Commissioner is REVERSED and the case REMANDED to the ALJ for further
proceedings consistent herewith.
DATED this 29th day of March, 2013.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?