Dixon v. Social Security Administration

Filing 19

OPINION AND ORDER by Magistrate Judge Kimberly E. West reversing and remanding the decision of the ALJ. (sjr, Chambers) (Main Document 19 replaced on 9/30/2015) (sjr, Chambers).

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
STEPHANIE E. DIXON,

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

Case No. CIV-14-340-KEW

OPINION AND ORDER

Plaintiff Stephanie E. Dixon (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
discussed

that
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 the case is
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).

A claimant is disabled under the Social

Security

Act

“only

if

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:
substantial

This Court’s review is limited to

first, whether the decision was supported by

evidence;

and,

second,

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whether

the

correct

legal

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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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.”
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 March 16, 1965 and was 47 years old at the
time of the ALJ’s decision.

Claimant completed her high school

education and three years of college.
past as a receptionist.

Claimant has worked in the

Claimant alleges an inability to work

beginning March 17, 2011 due to limitations resulting from neck pain
radiating down her right leg and left side numbness.
Procedural History
On April 19, 2011, Claimant protectively filed for disability

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insurance benefits under Title II (42 U.S.C. § 401, et seq.) and
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 December 17,

2012, Administrative Law Judge (“ALJ”) James Bentley conducted a
video hearing presiding from McAlester, Oklahoma while Claimant
appeared in Poteau, Oklahoma.
an unfavorable decision.

On January 11, 2013, the ALJ issued

The Appeals Council denied review of the

ALJ’s decision on June 26, 2014.

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 (1) failing to find
Claimant’s impairments met or equaled a listing; (2) failing to
reach a proper RFC determination; and (3) reaching findings at step
five which are not supported by the evidence.

Claimant also

requests that certain new evidence be added to the record and
considered.

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Evaluation for a Listing
In his decision, the ALJ found Claimant suffered from the
severe impairments of radicular left trapezius arm pain, neck pain,
post-cervical fusion at C5-6, degenerative disc disease at C4-5, and
spondylosis, degenerative lumbar disc disease, and obesity.

(Tr.

19).

The ALJ determined Claimant retained the RFC to perform light

work

except

Claimant

would

require

a

occasionally kneel, crouch, and crawl.

sit/stand

option,

could

Claimant should never be

exposed to unprotected heights or hazardous machinery.

She could

perform only occasional reaching in all directions bilaterally and
only occasional handling and fingering.

(Tr. 19-20).

After consulting with a vocational expert, the ALJ determined
that Claimant could perform the representative jobs of information
clerk and surveillance system monitor, both of which the ALJ
determined existed in sufficient numbers in both the regional and
national economies.

(Tr. 24).

As a result, the ALJ determined

Claimant was not under a disability from March 17, 2011 through the
date of the decision.

Id.

Claimant contends the ALJ did not properly evaluate whether she
met or equaled a listing at step three.

Specifically, Claimant

asserts that she meets Listing § 1.04 for disorders of the spine.

The ALJ found that Claimant did not meet this listing, determining
that the medical evidence does not establish the requisite evidence

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of nerve root compression, spinal arachnoiditis, or lumbar spinal
stenosis.

He also stated that no evidence appeared in the record

to indicate that Claimant’s back condition resulted in an inability
to ambulate effectively as required by Listing § 1.00(B)(2)(b).
(Tr. 19).
The portion of Listing § 1.04 which is applicable in this case
states:
Disorders of the spine (e.g., herniated nucleus pulposus,
spinal arachnoiditis, spinal stenosis, osteoarthritis,
degenerative disc disease, facet arthritis, vertebra
fracture), resulting in compromise of a nerve root
(including cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion
of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower
back, positive straight-leg raising test (sitting and
supine)
*

*

*

At step three, Claimant bears the burden of demonstrating that
her condition meets or equals all of the specified criteria of the
particular listing.

Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

Nerve root compression was noted in Dr. Joseph W. Queeney’s
notes dated January 6, 2011.

(Tr. 302).

She also suffered from

decreased range of motion of the spine, diminished reflexes, and
positive straight leg raising in the supine position.

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(Tr. 302,

310, 313).

The problem with the ALJ’s conclusion is that he

determined that no nerve root compression was present when the
medical record supports its presence.

This Court cannot, as

Defendant suggests, continue through the listing analysis and ignore
the ALJ’s erroneous conclusion.

Since he did not find that nerve

compression was present, he made no findings about improvement with
surgery or the existence of the condition for 12 months as Defendant
seeks to have this Court conclude.

As a result, the ALJ shall re-

examine his findings on whether Claimant meets or equals Listing §
1.04 on remand.
RFC Determination
Claimant also states the ALJ’s RFC evaluation ignores medical
evidence which contradicts his conclusions.

On December 10, 2012,

Dr. Brandi Couthvey (or Guthrey, as Claimant’s counsel refers to her
in

the

briefing)

completed

a

medical

source

statement.

She

determined Claimant could occasionally and frequently lift/carry
less than 10 pounds; stand/walk less than 2 hours in an 8 hour
workday; sit for less than about 6 hours in an 8 hour workday.

She

could never climb, kneel, crouch, or crawl. Claimant’s manipulative
functioning was limited “secondary to chronic neuropathy.”

(Tr.

379-81).
On September 8, 2011, Dr. Thomas Bonin performed a functional
capacity assessment on Claimant.

Claimant was limited to 7 pounds

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of lifting/carrying and only occasional standing.

Dr. Bonin also

recognized that Claimant’s persistent pain would limit her ability
to complete tasks.
sedentary functions.

(Tr. 356).

He limited Claimant to largely

(Tr. 358).

Additionally, Dr. Queeney in his evaluation suspected Claimant
suffered from myelomalacia which continued to cause her pain.
did not believe this condition would improve.

He

(Tr. 305).

The ALJ omitted much of this evidence from his analysis or
discounted its application.

In fact, a review of the ALJ’s

consideration of the medical opinion evidence demonstrates that he
gave none of the opinions significant weight; rather, he did not
state a weight for the opinion of Dr. Jimmie Taylor, a consultative
examiner, gave Dr. James Metcalf’s opinion “some weight”, gave Dr.
Couthey’s opinion “little weight”, gave Dr. Bonin’s opinion “little
weight”, gave Suzan Abeyta, a physical therapist’s opinion “little
weight”, and gave Claimant’s attorney’s brief “little weight”. Very
little opinion evidence remains after reduced weight was given to
most of it.

On remand, the ALJ shall re-evaluate his RFC to

ascertain whether additional restrictions should be imposed as a
result of Claimant’s continuing spinal problems.
Step Five Analysis
Since the ALJ is required to reconsider his RFC assessment, he
should

also

reformulate

his

hypothetical

8

questioning

of

the

vocational expert to mirror his ultimate findings.
Additional Evidence
Since this case will be remanded for further consideration, the
ALJ can assess whether the new evidence in the form of a new MRI
should be considered as relating to the relevant period.
Conclusion
The

decision

of

the

Commissioner

is

not

supported

by

substantial evidence and the correct legal standards were not
applied. Therefore, this Court finds 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, 2015.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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