Henshaw v. Social Security Administration

Filing 23

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

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
RETTA HENSHAW,

)
)
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)
)
)
)
)
)
)
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Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.

Case No. CIV-13-106-KEW

OPINION AND ORDER

Plaintiff Retta Henshaw (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 February 20, 1962 and was 49 years old at
the time of the ALJ’s decision.

Claimant obtained her GED.

Claimant has no past relevant work.

Claimant alleges an inability

to work beginning January 1, 2002 due to limitations resulting from
hypertension,

arthritis,

back

problems,

chronic

fatigue,

fibromyalgia, anxiety, depression, irritable bowel syndrome, lupus,

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severe allergies, headaches, and pain in her joints.

Claimant also

contends she suffers from memory and concentration problems and
sleep problems.
Procedural History
On May 24, 2010, Claimant protectively filed for supplemental

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

Claimant’s application was denied

initially and upon reconsideration.

On November 28, 2011, an

administrative hearing was held before Administrative Law Judge
(“ALJ”) Lantz McClain in Tulsa, Oklahoma.

By decision dated

January 25, 2012, the ALJ denied Claimant’s request for benefits.
The Appeals Council denied review of the ALJ’s decision on February
2, 2013.

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
functional capacity (“RFC”) to perform light work with limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in rejecting the

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medical opinion relating to Claimant’s mental.
Consideration of the Opinion Evidence
In his decision, the ALJ found Claimant suffered from the
severe impairments of systemic lupus erythematosus, fibromyalgia,
degenerative disc disease, and a mood disorder.

(Tr. 14).

The ALJ

determined Claimant retained the RFC to perform light work by
occasionally lifting/carrying 20 pounds, frequently lifting/carrying
10 pounds, standing and/or walking for 6 hours in an 8 hour workday,
and sitting for 6 hours in an 8 hour workday, all with normal
breaks.

The ALJ found Claimant should avoid working above shoulder

level and should be limited to simple, repetitive tasks having no
more than incidental contact with the public.

(Tr. 16).

After consultation with a vocational expert, the ALJ found
Claimant could perform the representative jobs of small product
assembler and bakery worker which the vocational expert testified
existed in sufficient numbers nationally and regionally.
The ALJ, therefore, concluded Claimant was not disabled.

(Tr. 19).
Id.

Claimant contends the ALJ failed to properly evaluate the
opinion of Dr. Tom Shadid, a state agency physician who reviewed
Claimant’s

records.

Dr.

Shadid

completed

a

Mental

Residual

Functional Capacity Assessment on Claimant on October 25, 2010.
concluded

Claimant

suffered

from

5

marked

limitations

in

He
the

functional areas of the ability to understand and remember detailed
instructions, the ability to carry out detailed instructions, and
the ability to interact appropriately with the general public. (Tr.
311-12).

In the narrative portion of the functional capacity

assessment set out in the form, Dr. Shadid stated Claimant can
perform

simple

tasks

with

routine

supervision,

can

relate

to

supervisors and peers on a superficial work basis, cannot relate to
the general public, and can adapt to a work situation.

(Tr. 313).

In his decision, the ALJ gave Dr. Shadid’s opinion, together
with the opinions of other state agency physicians, “great weight”
“because they are well supported by medically acceptable clinical
and laboratory techniques and are not inconsistent with the other
substantial evidence of record.”
the

ALJ

failed

to

include

(Tr. 18).

Dr.

Shadid’s

Claimant suggests that
restriction

to

only

superficial contact with supervisors and peers in his RFC and, as
a result, effectively rejected this portion of Dr. Shadid’s opinion
without providing a justification for doing so.

This Court must agree that the ALJ gave Dr. Shadid’s opinion
significant

weight

without

adopting

the

totality

of

his

restrictions or providing an explanation for not including this
restriction in his RFC.

The ALJ is required to consider all

medical opinions, whether they come from a treating physician or

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non-treating source.

Doyle v. Barnhart, 331 F.3d 758, 764 (10th

Cir. 2003); 20 C.F.R. § 416.927(c).

He must provide specific,

legitimate reasons for rejecting any such opinions.

The ALJ must

also give consideration to several factors in weighing any medical
opinion.

Id.; 20 C.F.R. § 416.927(d)(1)-(6).

He is also not

entitled to pick and choose through an uncontradicted medical
opinion, taking only the parts that are favorable to a finding of
nondisability.

Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir.

2007). On remand, the ALJ shall consider the restriction stated by
Dr. Shadid not included in the ALJ’s RFC.
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.
IT IS SO ORDERED this 30th day of September, 2014.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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