Crooms v. Social Security Administration

Filing 19

OPINION AND ORDER by Magistrate Judge Steven P. Shreder REVERSING and REMANDING the decision of the ALJ. (tmb, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
CAROLYN D. CROOMS,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the Social
Security Administration, 1
Defendant.

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) Case No. CIV-15-380-SPS
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OPINION AND ORDER
The claimant Carolyn D. Crooms requests judicial review of a denial of benefits
by the Commissioner of the Social Security Administration pursuant to 42 U.S.C.
§ 405(g). She appeals the Commissioner’s decision and asserts the Administrative Law
Judge (“ALJ”) erred in determining she was not disabled. For the reasons set forth
below, the decision of the Commissioner is hereby 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 h[er] physical or mental impairment or impairments are of such
1

On January 20, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security. In
accordance with Fed. R. Civ. P. 25(d), Ms. Berryhill is substituted for Carolyn W. Colvin as the
Defendant in this action.

severity that [s]he is not only unable to do h[er] previous work but cannot, considering
h[er] age, education, and work experience, engage in any other kind of substantial gainful
work which exists in the national economy[.]” Id. § 423 (d)(2)(A). Social security
regulations implement a five-step sequential process to evaluate a disability claim. See
20 C.F.R. §§ 404.1520, 416.920. 2
Section 405(g) limits the scope of judicial review of the Commissioner’s decision
to two inquiries: whether the decision was supported by substantial evidence and whether
correct legal standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164
(10th Cir. 1997). Substantial evidence is “‘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); see also Clifton v. Chater, 79 F.3d 1007,
1009 (10th Cir. 1996).

The Court may not reweigh the evidence or substitute its

discretion for the Commissioner’s. See Casias v. Sec’y of Health & Human Svcs., 933
F.2d 799, 800 (10th Cir. 1991). But the Court must review the record as a whole, and
2

Step One requires the claimant to establish that she is not engaged in substantial gainful
activity. Step Two requires the claimant to establish that she has a medically severe impairment
(or combination of impairments) that significantly limits her ability to do basic work activities.
If the claimant is engaged in substantial gainful activity, or her impairment is not medically
severe, disability benefits are denied. If she does have a medically severe impairment, it is
measured at step three against the listed impairments in 20 C.F.R. Part 404, Subpt. P, App. 1. If
the claimant has a listed (or “medically equivalent”) impairment, she is regarded as disabled and
awarded benefits without further inquiry. Otherwise, the evaluation proceeds to step four, where
the claimant must show that she lacks the residual functional capacity (“RFC”) to return to her
past relevant work. At step five, the burden shifts to the Commissioner to show there is
significant work in the national economy that the claimant can perform, given her age,
education, work experience, and RFC. Disability benefits are denied if the claimant can return to
any of her past relevant work or if her RFC does not preclude alternative work. See generally
Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).

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“[t]he substantiality of 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
The claimant was born November 13, 1967, and was forty-six years old at the time
of the administrative hearing (Tr. 55). She has a tenth grade education and a certified
nursing assistant certificate, and has worked as a certified nurse assistant (Tr. 56, 73).
The claimant alleges she has been unable to work since January 1, 2012, due to back
pain; low blood count; and arthritis in her wrists, hips, knees, and feet (Tr. 201, 234).
Procedural History
On June 12, 2012, the claimant applied for disability insurance benefits under Title
II of the Social Security Act, 42 U.S.C. §§ 401-434, and supplemental security income
benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85.

Her

applications were denied. ALJ Doug Gabbard, II conducted an administrative hearing
and determined that the claimant was not disabled in a written opinion dated March 21,
2014 (Tr. 34-45). The Appeals Council denied review, so the ALJ’s opinion represents
the Commissioner’s final decision for purposes of this appeal. See 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 found that
the claimant had the residual functional capacity (“RFC”) to perform a limited range of
light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), i. e., she could
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lift/carry twenty pounds occasionally and ten pounds frequently, and sit/stand/walk six
hours each in an eight-hour workday, but could only occasionally stoop and crawl
(Tr. 39). The ALJ further found the claimant required a sit/stand option every fifteen to
thirty minutes without leaving the workstation, and the ability to elevate her feet three to
four inches off the ground throughout the workday while seated (Tr. 39). The ALJ
concluded that although the claimant could not return to her past relevant work, she was
nevertheless not disabled because there because there was work she could perform in the
regional and national economies, e. g., ticket seller and cutter-and-paster (Tr. 45).
Review
The claimant contends that the ALJ erred in assessing her RFC by failing to
properly consider her non-severe impairments at step four of the sequential analysis. The
Court agrees, and the decision of the Commissioner is therefore reversed.
The ALJ determined that the claimant had the severe impairment of lumbar
degenerative disc disease, as well as the non-severe impairments of osteoarthritis,
obesity,

hypertension,

systolic

murmur,

hyperlipidemia,

sleeping

problems,

hypothyroidism, abnormal vaginal bleeding, status post hysterectomy, constipation,
abdominal pain, bloating, hemorrhoids, tobacco abuse, and plantar fasciitis (Tr. 36). He
found her alleged depression was not medically determinable (Tr. 38-39). The relevant
medical evidence reveals that the claimant presented to ABC Medical Clinic on October
12, 2010, with, inter alia, pain in her left knee, ankle, and calf, and a burning sensation in
her left knee and ankle, and was prescribed pain medication (Tr. 303). The record
contains no further evidence of medical treatment until the claimant established care with
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Dr. Chris Sturch on June 7, 2012, and reported left hip pain that was radiating to her thigh
(Tr. 313-15). Dr. Sturch ordered x-rays of the claimant’s hip and knee, but such reports
are not contained in the record (Tr. 313).
The claimant established care with Dr. Vivek Khetpal on August 16, 2012, and he
regularly treated her through September 20, 2013 (Tr. 325-44, 357-59, 388-425). Dr.
Khetpal’s diagnoses included, inter alia, chest pain, labile hypertension, arthritic back,
knee pain, radicular arm pain, and lower limb edema (Tr. 325-44, 357-59, 388-425). The
claimant’s treatment largely consisted of medication management, but she did receive an
injection in her left knee on March 29, 2013, and one in her right knee on April 5, 2013
(Tr. 406-11). A stress test performed on September 24, 2012, was symptomatically
negative (Tr. 328). Dr. Khetpal’s treatment notes regularly reflect the claimant’s labile
hypertension was well controlled with medication (Tr. 325-44, 357-59, 388-425). A CT
scan conducted on October 10, 2012, revealed, inter alia, degenerative changes of the
claimant’s lumbar spine, most prominent at the L2-3 disc level (Tr. 343-44). On physical
examination, Dr. Khetpal frequently noted pain and/or decreased range of motion in the
claimant’s back (Tr. 326, 358, 389, 392, 395, 404, 407, 410, 422, 424).
On July 20, 2012, William Cooper, D.O., performed a consultative physical
examination of the claimant (Tr. 317-23). Dr. Cooper noted the claimant had full range
of motion in her hips, knees, and left shoulder, but experienced pain with such testing
(Tr. 318). He also noted full range of motion in her cervical spine, thoracic spine, and
lumbar-sacral spine, but that her low back was tender to palpation (Tr. 318). He found no
swelling in the claimant’s knees or legs, and stated her gait was normal (Tr. 318-19). Dr.
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Cooper assessed the claimant with osteoarthritis, chronic low back pain, and anemia
(probably low iron deficiency) (Tr. 319).
State reviewing physician Dr. Karine Lancaster completed a Physical Residual
Functional Capacity Assessment on February 6, 2013, and found the claimant capable of
performing light work with frequent kneeling and crouching, and occasional stooping and
crawling (Tr. 96-106).
On June 6, 2013, the claimant presented to Dr. Matthew Jackman, a podiatrist, and
reported bilateral foot and ankle pain (Tr. 380-85). Dr. Jackman noted the claimant had
mild bunion deformities on both of her feet, and tenderness along the plantar fascia and
into her left heel, but no weakness, swelling, or redness (Tr. 384-85). An x-ray taken that
day revealed a plantar heel spur and a mild bunion on the claimant’s left foot (Tr. 385).
Dr. Jackman diagnosed the claimant with a calcaneal spur and plantar fasciitis, and
recommended physical therapy (which the claimant deferred), as well as conservative
treatments including icing, stretching, activity modifications, appropriate shoe gear, and
use of supportive inserts (Tr. 385).
At the administrative hearing, the claimant testified that she is unable to work due
to spurs on her feet, back pain, leg pain, and a “messed up” left arm (Tr. 58). She
testified that pain medications are effective in treating her pain (Tr. 58-59). She stated
she experiences swelling in her feet daily, which is relieved by elevation (Tr. 65-66). She
further stated her systolic heart murmur causes chest pain when she lifts, exerts herself, or
runs (Tr. 67-68). Regarding her daily activities, the claimant testified she mostly watches
television during the day, but does limited household chores in small increments (Tr. 60-6-

61). As to specific limitations, the claimant stated she could lift ten to fifteen pounds,
stand for ten to fifteen minutes before needing to sit, and sit for twenty to thirty minutes
before needing to stand (Tr. 60-62).
In his written opinion, the ALJ summarized the claimant’s testimony, as well as
the medical evidence. The ALJ noted the claimant’s non-severe impairments at step two,
and explained why he concluded they were non-severe (Tr. 11-14). At step four, he
discussed the medical evidence related to the claimant’s only severe impairment, and
determined that she was not completely credible, but did not mention the claimant’s
multiple non-severe impairments at this step (Tr. 39-43). The ALJ’s failure to consider
all of the claimant’s impairments, both singly and in combination, at step four was error.
See Hill v. Astrue, 289 Fed. Appx. 289, 292 (10th Cir. 2008) (“In determining the
claimant’s RFC, the ALJ is required to consider the effect of all of the claimant’s
medically determinable impairments, both those he deems ‘severe’ and those ‘not
severe.’”) [emphasis in original]. See, e. g., Grotendorst v. Astrue, 370 Fed. Appx. 879,
884 (10th Cir. 2010) (“[O]nce the ALJ decided, without properly applying the special
technique, that Ms. Grotendorst’s mental impairments were not severe, she gave those
impairments no further consideration. This was reversible error.”); McFerran v. Astrue,
437 Fed. Appx. 634, 638 (10th Cir. 2011) (“[T]he ALJ made no findings on what, if any,
work-related limitations resulted from Mr. McFerran’s nonsevere mood disorder and
chronic pain. He did not include any such limitations in either his RFC determination or
his hypothetical question. Nor did he explain why he excluded them. In sum, we cannot
conclude that the Commissioner applied the correct legal standards[.]”).
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More

specifically, the ALJ should at least have discussed the impact of the claimant’s obesity
on her other impairments in light of the impact that obesity can have on the
musculoskeletal system coupled with the claimant’s documented repeat problems related
to pain and/or decreased range of motion in her back, as well as Dr. Khetpal’s repeat
recommendations of weight loss for treating her labile hypertension, chest pain, and
arthritic back (Tr. 325-39, 357-59, 388-425). See, e. g., Fleetwood v. Barnhart, 211 Fed.
Appx. 736, 741-42 (10th Cir. 2007) (noting “obesity is [a] medically determinable
impairment [the] ALJ must consider in evaluating disability; that [the] combined effect of
obesity with other impairments can be greater than effects of each single impairment
considered individually; and that obesity must be considered when assessing RFC.”),
citing Soc. Sec. R. 02-1p, 2000 WL 628049, at *1, *5-*6, *7; Baker v. Barnhart, 84 Fed.
Appx. 10, 14 (10th Cir. 2003) (noting that the agency’s ruling in Soc. Sec. Rul. 02-01p on
obesity applies at all steps of the evaluation sequence). See also Hamby v. Astrue, 260
Fed. Appx. 108, 112 (10th Cir. 2008) (discussing requirements of SSR 02-01p and
finding that “the ALJ provided no discussion of the effect of obesity on Ms. Hamby’s
other severe impairments.”).
Because the ALJ failed to properly evaluate all the claimant’s impairments singly
and in combination, the decision of the Commissioner is therefore reversed and the case
remanded to the ALJ for further analysis of the claimant’s impairments. If such analysis
results in any changes to the claimant’s RFC, the ALJ should re-determine what work the
claimant can perform, if any, and ultimately whether she is disabled.

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Conclusion
In summary, the Court FINDS that correct legal standards were not applied by the
ALJ, and the Commissioner’s decision is therefore not supported by substantial evidence.
The Commissioner’s decision is accordingly REVERSED and the case REMANDED for
further proceedings consistent herewith.
DATED this 27th day of March, 2017.

______________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE

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