Cornelius v. Social Security Administration

Filing 18

OPINION AND ORDER by Magistrate Judge Kimberly E. West reversing and remanding the decision of the ALJ(sjr, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MICHAEL LEE CORNELIUS,

)
)
)
)
)
)
)
)
)
)
)

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

Case No. CIV-15-215-KEW

OPINION AND ORDER

Plaintiff Michael Lee Cornelius (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 Appeals Council and asserts
that

the

determined
discussed

Commissioner
that
below,

erred

Claimant
it

is

was
the

because
not

the

Council

disabled.

finding

of

this

For

incorrectly
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).
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 22, 1962 and was 52 years old at
the time of the ALJ’s decision.

Claimant completed his high school

education. Claimant has worked in the past as a mechanic, owner and
operator of a tree service, and building cleaner/janitor.

Claimant

alleges an inability to work beginning February 22, 2012 due to
limitations resulting from pain and other limitations from ruptured

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discs at multiple levels of the neck and spine, fused discs due to
bone spurs, arthritis, depression, and reading problems due to
dyslexia.
Procedural History
On

September

17,

2012,

Claimant

protectively

filed

for

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

28,

2014,

an

administrative

hearing

was

held

On

before

Administrative Law Judge (“ALJ”) James Stewart in Tulsa, Oklahoma.
By decision dated May 6, 2014, the ALJ found Claimant was disabledf
since February 22, 2012 but not before that date.

The Appeals

Council reviewed the decision and reversed the favorable portion of
the ALJ’s decision on April 8, 2015.

The decision of the Appeals

Council represents the Commissioner’s final decision for purposes
of further appeal.

20 C.F.R. §§ 404.981, 416.1481.

Decision of the Appeals Council
The Appeals Council made its decision at step five of the
sequential evaluation.

It determined that while Claimant suffered

from severe impairments, he did not meet a listing and retained the
residual functional capacity (“RFC”) to perform a full range of

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light work.
Error Alleged for Review
Claimant asserts the Appeals Council committed error in (1)
improperly assessing Claimant’s credibility; (2) failing to justify
the reversal of the ALJ’s finding of Claimant’s general credibility;
and (3) finding Claimant could perform light work which was not
supported by substantial evidence.
Credibility Assessment
In his decision, the Appeals Council found Claimant suffered
from the severe impairments of ruptured disc in the lumbar spine,
ruptured disc and bone spurs in the cervical spine, arthritis, a
dysthymic disorder, an affective mood disorder, an anxiety-related
disorder, a learning disorder in reading, and a hearing impairment.
(Tr. 7).

The Appeals Council determined Claimant retained the RFC

to perform a full range of light work except Claimant can perform
no climbing of ladders, ropes or scaffolds; occasionally crawl,
crouch, stoop, kneel, climb ramps and stairs; must be able to wear
and use hearing aids and could have no exposure to extreme levels
of noise; could have no exposure to unprotected heights, open
flames, dangerous machinery, or equipment, or other hazardous
conditions.

Due to severe mental impairments, the Appeals Council

limited Claimant to unskilled work consisting of simple routine

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tasks with routine simple verbal instructions and Claimant could
only have superficial contact with the general public.

Any jobs

could not require any significant reading as part of the duties,
meaning Claimant could read labels and signs that are learned as
part of the job and stay relatively constant, but could not read and
interpret documents or instructions such as directions for operating
new machinery.

Id.

The Appeals Council found that the vocational expert identified
significant numbers of jobs in the national economy that Claimant
could have performed.

(Tr. 8).

Referring to the vocational

expert’s testimony, she identified the representative jobs of
garment bagger and small products assembler. (Tr. 53). The Appeals
Council, therefore, concluded Claimant was not disabled at any time
through the date of the decision, May 6, 2014.

(Tr. 8).

Claimant contends the Appeals Council failed to properly
justify its basis for reversing the finding of credibility made by
the ALJ.

This case presents a rather unusual circumstance - one

where the Appeals Council has reversed the ALJ’s fully favorable
decision and, in doing so, discounted Claimant’s credibility that
the ALJ had accepted.

“Credibility determinations are peculiarly

in the province of the finder of fact” and, as such, will not be
disturbed when supported by substantial evidence.
Chater, 68 F.3d 387, 391 (10th Cir. 1995).
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Kepler v.

In this instance, the

Appeals Council stated on two occasions in its decision that
Claimant’s subjective complaints were not fully credible “for the
reasons identified in the body of this decision”
reasons explained below . . . .”

and “[f]or the

(Tr. 5, 7). Unfortunately, the

Appeals Council never makes good on its promise to explain its
deviation from the ALJ’s stand on Claimant’s credibility or set
forth references to the record which specifically contradicts
Claimant’s statements of limitation.
The ALJ had expressed his belief that Claimant’s explanation
of his conditions and limitations were credible.

At the hearing,

the ALJ addressed Claimant and concluded with
I have listened carefully to what you’ve said. And I tend
to, to, I tend to concur.
I’m not saying that I concur 100 percent with
everything you were saying, but you were in an accident.
It wasn’t you fault. You had a good work record and you
certainly got medical evidence to support the low back.
And so, as I indicated to Counsel in matters that
may be too technical for you to understand because that
if we can get some additional medical evidence, there’s
a good chance that your case will be decided favorably.
(Tr. 48).
Despite this expression of support for favorable credibility
to Claimant’s testimony, the Appeals Council overruled the trier of
fact who actually observed and examined Claimant and found the

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testimony was not credible and did so without foundation.
Appeals

Council’s

scant

discussion

and

credibility should be and is reversed.

ruling

on

The

Claimant’s

If this were the only issue

on appeal, this Court would order the reinstatement of the ALJ’s
decision.

However, as the Appeals Council indicates, the ALJ

certainly erred in failing to evaluate the vocational expert’s
testimony that jobs existed in the economy which Claimant could
perform with his RFC. As a result, the case must be remanded to the
ALJ for further consideration of his step five findings.
Step Five Analysis by the Appeals Council
Claimant also asserts the Appeals Council failed to recognize
that the ALJ observed the effects of Claimant’s condition upon his
ability to walk at the hearing.

This argument is a further

extension of the challenge to the Appeals Council’s credibility
determination which this Court has already found to be deficient.
Claimant states the ALJ and the Appeals Council failed to
adequately consider the opinion of Dr. Seth Nodine’s findings
concerning the effects of Claimant’s flat foot condition upon his
ability to walk and engage in prolonged standing.
To

an

extent,

Dr.

Nodine

relied

upon

(Tr. 295-96).

Claimant’s

subjective

statements in finding that he could not stand longer than one or two
hours and experienced particular pain on concrete floors.

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(Tr.

295).

Should the ALJ’s findings on credibility be maintained, Dr.

Nodine’s limitations should be considered by the ALJ.

Dr. Nodine’s

findings after examination concerning Claimant’s limited range of
motion of the lumbar and cervical spine which affected his ability
to bend at the waist is in direct conflict with the Appeals
Council’s adoption of the reviewing agency physician’s opinion that
Claimant could engage in occasional stooping.

The Appeals Council

provided little explanation for this position in its decision. The

ALJ is required to consider every medical opinion in reaching his
assessment

and

must

rejecting an opinion.
Cir. 2003).

provide

specific,

legitimate

reasons

for

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

The ALJ and, by extension, Appeals Council must also

explain in the decision the weight given to the medical opinions.
Soc. Sec. R. 96-6p, 1996 WL 374180. An ALJ “is not entitled to pick
and choose through an uncontradicted medical opinion, taking only
the parts that are favorable to a finding of nondisability.”
v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007).

Haga

On remand,

Claimant’s limited stooping found by Dr. Nodine shall be reevaluated and the examining physician’s position will be afforded
the weight that it is due.
Moreover, neither the ALJ nor the Appeals Council ascertained
the singular or combined effect of Claimant’s obesity upon his

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limitations.

On

remand,

the

ALJ

shall

provide

the

required

analysis.
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 15th day of September, 2016.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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