Gray v. Social Security Administration

Filing 21

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
TIMOTHY W. GRAY,

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)
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Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social
Security Administration,
Defendant.

Case No. CIV-15-314-KEW

OPINION AND ORDER

Plaintiff Timothy W. Gray (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 Claimant was not disabled.
discussed

below,

it

is

the

finding

of

this

For the reasons
Court

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 in the national economy. . .”
§423(d)(2)(A).

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,

1

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).

2

standards were applied.
(10th

Cir.

Hawkins v. Chater, 113 F.3d 1162, 1164

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

800

&

Human

Servs.,

933

F.2d

799,

(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 May 24, 1977 and was 36 years old at the
time of the ALJ’s decision.

Claimant completed his high school

education and vocational technical training in heating and air
conditioning.

Claimant has worked in the past as a school bus

driver, cook, sign tech, maintenance worker, oil changer, bottle
maker, radio installer, and HVAC installer.

Claimant alleges an

inability to work beginning May 28, 2011 due to limitations

3

resulting

from

COPD,

neuropathy

in

his

hands

and

feet,

fibromyalgia, arthritis in his back, knees, and hands, depression,
stomach/esophagus problems, high blood pressure, and hiatal hernia.
Procedural History
On

September

12,

2011,

Claimant

protectively

filed

for

disability insurance benefits under Title II (42 U.S.C. § 401, et
seq.) of the Social Security Act.

Claimant’s application was

denied initially and upon reconsideration.
Administrative

Law

Judge

administrative

hearing

On October 24, 2013,

(“ALJ”)

Gene

M.

Kelly

conducted

an

video

with

Claimant

appearing

in

Muskogee, Oklahoma and the ALJ presiding in Tulsa, Oklahoma.

On

by

February 6, 2014, the ALJ entered an unfavorable decision. On July
24, 2015, the Appeals Council denied review of the decision.

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, he 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 failing to specify

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the frequency of Claimant’s need to alternate between sitting and
standing in the RFC assessment.
RFC Evaluation
In his decision, the ALJ found Claimant suffered from the
severe impairments of angina, degenerative disc disease, obesity,
knee impairment, neuropathy, esophagitis and suspected Barrett’s
esophagus, hyperglycemia, chronic obstructive pulmonary disease
(“COPD”), hypertension, depression, and anxiety.

(Tr. 22).

The

ALJ determined Claimant retained the RFC to perform light work. In
so doing, the ALJ found that Claimant could lift/carry 20 pounds
occasionally and 10 pounds frequently, stand or walk for six hours
in an eight hour workday, and sit at least six hours in an eight
hour workday.

He can only occasionally climb, bend, stoop, squat,

kneel, crouch, crawl, push, and pull.

Claimant had a slight

limitation (between constant an frequent) in finger, feel, and grip
with the same slight limitation on foot controls.
Claimant

should

avoid

uneven

surfaces,

The ALJ found

heights,

dangerous

machinery, temperature extremes, wet work environments, dust,
fumes, odors, and gases.
restrooms.

Claimant should have easy access to

He would need to alter position for time to time (he

would not have to leave the work station) and would be able to meet
production quotas.

Claimant could perform simple, routine work.

He was found to be afflicted with symptomatology from a variety of

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sources that produced mild to moderate chronic pain, which was of
sufficient severity to be noticeable to him at all times, but
nonetheless he should be able to remain attentive and responsive in
a work setting and could carry out work assignments satisfactorily.
The

ALJ

noted

Claimant

took

medication

for

the

relief

of

symptomatology, however, medications did not preclude him from
functioning

at

the

level

as

restricted

and

he

would

remain

reasonably alert to perform required functions in the work setting.
(Tr. 24).
After consulting with a vocational expert, the ALJ concluded
that

Claimant

could

perform

the

representative

jobs

of

hand

packager, sorting jobs, assembly worker, and food order clerk, all
of which the ALJ determined existed in sufficient numbers in both
the regional and national economies.

(Tr. 32).

As a result, the

ALJ determined Claimant was not under a disability from May 28,
2011 through the date of the decision.

Id.

Claimant contends the ALJ specified a sit/stand option in the
RFC without designating the frequency required for alternating
between sitting and standing.

Defendant counters that the ALJ did

not actually designate a sit/stand option but only that Claimant
required to alternate positioning from time to time.

For more

clarification, a review of the hearing transcript reveals that the
ALJ characterized the restriction in his hypothetical questioning

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of the vocational expert as
I’m not making this a sit/stand option, I’m saying he
just has to shift position, move around in his chair,
maybe stand up for a second, and maybe sit down for a
second, he will not be required to leave the work station
and he will be able to maintain production quotas.
(Tr. 68).
It

appears

from

this

question

that

the

ALJ

declined

a

sit/stand option then posed a question with a factual circumstance
that included a sit/stand option.
surrounding

or

suggesting

a

The problem with the question

sit/stand

option

is

that

the

regulations and case authority require that the ALJ “must be
specific as to the frequency of the individual’s need to alternate
sitting and standing.”

Soc. Sec. R. 96-9p, 1996 WL 374185, at *7.

The Tenth Circuit has found that the language of changing position
“from time to time” to be “vague.”

Armer v. Apfel, 2000 WL 743680,

*3 (10th Cir. June 9, 2000).
Moreover, Defendant now argues that the ALJ’s “from time to
time”

designation

restriction.

is

equivalent

to

a

“alternate

at

will”

Nothing in the ALJ’s decision indicates he intended

this since he also states that productivity would be unaffected.
“[R]esidual functional capacity consists of those activities that
a claimant can still perform on a regular and continuing basis
despite his or her physical limitations.”
F.3d 903, 906 n. 2 (10th Cir. 2001).

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White v. Barnhart, 287

Since the restriction on

Claimant’s movements during work is not adequately explained, the
case will be remanded to allow such a clarification and statement
of frequency of the restriction - with specificity.
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 March, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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