Gray v. Social Security Administration
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,
NANCY A. BERRYHILL, Acting
Commissioner of Social
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.
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.
For the reasons
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
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. . .”
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).
This Court’s review is limited to
first, whether the decision was supported by
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).
standards were applied.
Hawkins v. Chater, 113 F.3d 1162, 1164
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
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
The court may not re-weigh the evidence nor substitute
its discretion for that of the agency.
Casias v. Secretary of
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.”
Corp. v. NLRB, 340 U.S. 474, 488 (1951); see also, Casias, 933 F.2d
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
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
fibromyalgia, arthritis in his back, knees, and hands, depression,
stomach/esophagus problems, high blood pressure, and hiatal hernia.
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.
On October 24, 2013,
Muskogee, Oklahoma and the ALJ presiding in Tulsa, Oklahoma.
February 6, 2014, the ALJ entered an unfavorable decision. On July
24, 2015, the Appeals Council denied review of the decision.
result, the decision of the ALJ represents the Commissioner’s final
decision for purposes of further appeal.
20 C.F.R. §§ 404.981,
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
the frequency of Claimant’s need to alternate between sitting and
standing in the RFC assessment.
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.
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
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.
The ALJ found
machinery, temperature extremes, wet work environments, dust,
fumes, odors, and gases.
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
Claimant could perform simple, routine work.
He was found to be afflicted with symptomatology from a variety of
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.
symptomatology, however, medications did not preclude him from
reasonably alert to perform required functions in the work setting.
After consulting with a vocational expert, the ALJ concluded
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.
As a result, the
ALJ determined Claimant was not under a disability from May 28,
2011 through the date of the decision.
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.
clarification, a review of the hearing transcript reveals that the
ALJ characterized the restriction in his hypothetical questioning
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.
sit/stand option then posed a question with a factual circumstance
that included a sit/stand option.
The problem with the question
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
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).
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.
substantial evidence and the correct legal standards were not
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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