Nugent 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
LARRY NUGENT,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.
Case No. CIV-13-253-KEW
OPINION AND ORDER
Plaintiff Larry Nugent (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
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 (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 September 12, 1962 and was 49 years old
at the time of the ALJ’s decision.
Claimant completed his high
school education and obtained an associates degree in nursing.
Claimant was a staff sergeant in the Air Force where he worked as
a medic.
He also worked in the past as a fiberglass laminator
building boats, a dishwasher in a restaurant, and an ammunition
3
process checker/inspector.
Claimant alleges an inability to work
beginning January 1, 2009 due to limitations resulting from sleep
apnea, depression/anxiety, panic attacks, confusion, weakness as a
side effect of his medications, sinusitus, dizziness, angina, rapid
pulse, hypertension, and an enlarged heart.
Procedural History
On March 15, 2010, Claimant protectively filed for disability
insurance benefits under Title II (42 U.S.C. § 401, et seq.) of the
Social Security Act.
On March 30, 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
applications were denied initially and upon reconsideration.
On
February 23, 2012, an video administrative hearing was held before
Administrative Law Judge (“ALJ”) John W. Belcher with the ALJ in
Tulsa and Claimant in Muskogee, Oklahoma.
By decision dated March
26, 2012, the ALJ denied Claimant’s requests for benefits.
The
Appeals Council denied review of the ALJ’s decision on May 29,
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
4
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
sedentary
work
with
limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
consider that Claimant was in borderline age category when he made
his decision; and (2) rejecting the opinion of the state agency
physicians who reviewed Claimant’s medical record.
Claimant’s Age Category
In his decision, the ALJ found Claimant suffered from the
severe impairments of “heart”, hypertension (orthostatic), sleep
apnea (untreated), obesity, affective disorder, and anxiety related
disorder.
(Tr. 14).
The ALJ determined Claimant retained the RFC
to perform sedentary work by occasionally lifting/carrying 10
pounds, frequently lifting/carrying less than 10 pounds, standing
and/or walking for 2-3 hours in an 8 hour workday for 15 minutes at
a time, and sitting for 6-8 hours in an 8 hour workday all with
normal breaks.
scaffolds.
Claimant should avoid climbing ladders, ropes and
He was able to climb stairs, balance, bend, or stoop,
kneel, crouch, and crawl only occasionally.
Claimant should avoid
fumes, odors, dusts, toxins, gases, and poor ventilation. He should
5
also avoid hazards or fast machinery, unprotected heights, and
driving.
Claimant was found to be able to do simple work with only
superficial contact with co-workers and supervisors. He should also
avoid contact with the public.
(Tr. 16).
After consultation with a vocational expert, the ALJ found
Claimant could perform the representative jobs of assembly worker,
inspector/checker, and clerical mailer/sorter, all of which the
vocational expert testified existed in sufficient numbers nationally
and regionally.
(Tr. 22-23).
Claimant was not disabled.
The ALJ, therefore, concluded
(Tr. 23).
Claimant contends the ALJ failed to consider that he was in a
borderline age category.
At the time of the ALJ’s decision,
Claimant was 49 years, 6 months, and 14 days old or 5 months and 17
days from turning 50 years old.
The application of the borderline
age situation is not applied mechanically. 20 C.F.R. §§ 404.1563(b)
and 416.963(b).
“Older age is an increasingly adverse vocational
factor for persons with severe impairments.”
Soc. Sec. R. 83-10.
The case authority is fluid on establishing how close to the next
age category a claimant must be to be placed in that category.
it is clear that the ALJ must address the issue.
But
Byers v. Social
Security Admin., 2012 WL 6700377 , 2-3 (10th Cir.). The ALJ did not
address the possibility but shall do so on remand.
This Court is
not directing that he find Claimant to be in the borderline age
6
category but, considering the sedentary work level in which Claimant
has been placed and the extent of his limitations, if Claimant does
fall in the borderline category it likely will affect his disability
status.
Consideration of State Agency Physicians’ Opinions
Claimant contends the ALJ improperly rejected the opinion of
Dr. Sally Varghese, a consulting physician on mental issues. On July
13, 2010, Dr. Varghese completed a Mental Residual Functional
Capacity Assessment form on Claimant.
She found Claimant to be
markedly limited in the areas of the ability to understand and
remember detailed instructions and the ability to carry out detailed
instructions. She also found Claimant was moderately limited in the
area of the ability to interact appropriately with the general
public.
(Tr. 662-63).
On October 8, 2010, Dr. Carolyn Goodrich also completed a
mental RFC assessment form.
She similarly found Claimant markedly
limited in the same first two areas as Dr. Varghese but found
Claimant to be markedly limited in the area of the ability to
interact appropriately with the general public.
(Tr. 688-89).
The ALJ stated that he gave these opinions “great weight” and
found their opinions to be consistent with his RFC determination.
(Tr. 21). However, he did not include any of the mental limitations
7
found by these state agency physicians in his RFC assessment.
The
ALJ erred by failing to explain the basis for rejecting these
physicians’ opinions regarding the functional limitations they
found.
Doyal v. Barnhart, 331 F.3d 758, 764 (10th Cir. 2003);
Shurbargo v. Barnhart, 2005 WL 3388615, 6 (10th Cir.).
On remand,
the ALJ shall either adopt the limitations findings in the opinions
of these physicians or explain why the findings are rejected.
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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