Waterdown v. Social Security Administration

Filing 20

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
SHANA L. WATERDOWN,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social
Security Administration,
Defendant.

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Case No. CIV-15-424-KEW

OPINION AND ORDER

Plaintiff

Shana

L.

Waterdown

(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.

For the

reasons discussed below, it is the finding of this 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 June 30, 1975 and was 38 years old at the
time of the ALJ’s decision.

Claimant obtained her GED.

Claimant

has worked in the past as a certified nurse’s aide and waitress.
Claimant alleges an inability to work beginning September 2, 2010
due to limitations resulting from back pain, bipolar disorder, and
depression.

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Procedural History
On

September

19,

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.

On April 1,

2014, an administrative hearing was held before Administrative Law
Judge (“ALJ”) Edmund C. Werre in Tulsa, Oklahoma.
an unfavorable decision on May 13, 2014.

The ALJ issued

The Appeals Council

denied review of the ALJ’s decision on September 3, 2015.

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 meets or equals a listing; (2) failing to properly
evaluate the medical source evidence; and (3) failed to perform a
proper credibility determination.
Consideration of the Listing

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In his decision, the ALJ found Claimant suffered from the
severe impairments of degenerative disc disease with left lower
extremity radiculopathy, status post left wrist operation, bipolar
disorder with psychological features, and mood disorder. (Tr. 20).
The ALJ determined Claimant retained the RFC to perform light work.
(Tr.

23).

In

so

doing,

he

found

Claimant

was

limited

to

lifting/carrying 20 pounds occasionally and 10 pounds frequently;
sitting for six hours and standing or walking for six hours in an
eight hour workday; no climbing ladders, ropes, or scaffolds, and
no more than occasional stooping, kneeling, crouching, crawling, or
twisting.
remember,

The ALJ determined Claimant was able to understand,
and

carry

out

simple

instructions

consistent

with

unskilled work that was repetitive and routine in nature and not
fast paced as an assembler-type position and able to relate and
interact with co-workers and supervisors on a work-related basis
only with no or minimal interaction with the general public.

The

ALJ found Claimant’s medications would not preclude her from
remaining reasonably alert to perform required functions presented
in a work setting.

(Tr. 23).

After consulting with a vocational expert, the ALJ concluded
that Claimant could perform the representative jobs of mail room
clerk, laundry sorter, clerical mailer, and stuffer, all of which
the ALJ determined existed in sufficient numbers in both the

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regional and national economies.

(Tr. 27).

As a result, the ALJ

determined Claimant was not under a disability from September 2,
2010 through the date of the decision.

Id.

Claimant contends the ALJ should have determined that she met
or equaled Listing 1.04 regarding disorders of the spine.
three,

Claimant

bears

the

burden

of

demonstrating

At step

that

her

condition meets or equals all of the specified criteria of the
particular listing.
Claimant

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

specifically

asserts

she

meets

the

requirements

for

Listing 1.04, which provides in pertinent part:
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)
*

*

*

The ALJ found Claimant failed to meet Listing 1.04 because (1)
an MRI of Claimant’s lumbar spine revealed she needed surgery for
a left posterior 4 mm protrusion at L5-S1 disc with an annular
fissure abutting the left S1 nerve root and left posterior L4-L5

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disc

bulge

but

could

not

have

surgery

because

her

worker’s

compensation case was concluded; (2) Dr. Thomas Craven limited
Claimant to lifting/carrying less than ten pounds and alternating
between sitting and standing; (3) a physician at Tulsa Bone & Joint
limited Claimant to lifting ten pounds, repetitive lifting of five
pounds, push-pull ten pounds and no excessive bending or twisting;
and (4) Dr. Richard Thomas found Claimant had a stable exam
standing with normal station and ambulating with a normal gait and
recommending lifting no more then 25 pounds and push-pull to 25
pounds. Based on this recitation, the ALJ found Claimant could not
meet Listing 1.04.
In

her

(Tr. 21).

briefing,

Claimant

indicates

she

had

nerve

root

compression, characterized by neuro-anatomic distribution of pain
(Tr. 362-63, 394), limitation of motion (Tr. 89, 02, 133, 364-65,
368, 376, 390, 395, 430, 431), motor loss (Tr. 390, 395, 434),
reflex loss (Tr. 395), and positive straight leg raising, both in
the sitting and supine positions (Tr. 368).
Defendant contends since her injury occurred in September of
2010 and Dr. Thomas released her in August of 2011, she cannot
demonstrate that her condition existed or was expected to exist for
a period of 12 months. 20 C.F.R. § 404.1509.
indicates

that

Claimant’s

condition

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required

The evidence

surgery

and

the

surgery was never performed. Dr. Thomas’ findings were relevant to
a worker’s compensation claim and Claimant’s stated interest in
being released and apparently did not involve a review of an MRI or
other testing which would have indicated the status of Claimant’s
spinal condition.

However, the fact remains that he released her

under a finding of maximum medical improvement with a higher
lifting

restriction

neurogenic findings.

and

after

a

stable

examination

with

no

The burden lies with Claimant to demonstrate

the duration of the condition and she failed in that burden.
Evaluation of the Opinion Evidence
Claimant argues the ALJ should have weighed the opinion of his
treating physician, Dr. Thomas Craven.

Dr. Craven, again in

association with Claimant’s worker’s compensation case, found she
should not lift/carry over ten pounds with an option to alternate
between sitting and standing.

(Tr. 378).

The form indicates the

restrictions were temporary in nature and that Claimant could
return to work on February 15, 2011.
Claimant for surgery.

Id.

Dr. Craven also referred

The ALJ referenced the opinion under

the listing discussion but did not weigh it in formulating the RFC.
(Tr. 21, 23).
Defendant contends the ALJ implicitly rejected the opinion
when he also cited to Dr. Thomas’ contradictory findings of a

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lifting restriction of 25 pounds.

The problem with this analysis

is that the sit/stand option is not accounted for in Dr. Thomas’
opinion and the ALJ’s decision is devoid of the reasoning necessary
to reject the findings of a treating physician. On remand, the ALJ
shall weigh and evaluate the opinion of the treating physician,
setting forth the specific bases for its consideration and the
ultimate weight he provides to the opinion.

Watkins v. Barnhart,

350 F.3d 1297, 1300 (10th Cir. 2003).
Claimant also challenges the ALJ’s failure to consider an RFC
report by a physician whose signature is illegible.

The report

indicates Claimant would have numerous problems in the workplace
due to her mental condition.
address this opinion.
this opinion.

(Tr. 257-58).

The ALJ did not

It was error not to reference and consider

On remand, the ALJ shall attempt to ascertain the

source of the statement and weigh and consider its findings, to the
extent they are verifiable.
Claimant also contends the vocational expert identified jobs
which required production rate pace after the ALJ found Claimant
should be restricted to jobs not requiring quotas. Dictionary of
Occupational Titles (“DOT”), #209.687-026, 361.687-014. She also
contends the vocational expert identified the job of mail clerk
which required a reasoning level of 3.

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DOT #209.687-026.

The ALJ

should evaluate this testimony after determining whether further
restrictions in the RFC for a sit/stand option should have been
included in the hypothetical questioning.
Credibility Determination
Claimant’s

testimony

regarding

her

level

of

pain

was

questioned by the ALJ, citing the fact that the type of treatment
she received was not consistent with the treatment one would
receive who suffered from the pain she described.

(Tr. 25).

The

fact

treatment

for

remains

that

surgery

was

the

recommended

Claimant’s condition but did not go through with the surgery
because she was afraid she would not be able to take care of her
son.

Id.

This stated basis for rejecting Claimant’s credibility

is suspect.
Since the ALJ’s decision in this matter, the Social Security
Administration has revised its rulings on evaluating statements
related to the intensity, persistence, and limiting effects of
symptoms in disability claims - what heretofore has been known as
“credibility” assessments.

Soc. Sec. R. 16-3p, 2106 WL 1119029

(March 16, 2016), superceding Soc. Sec. R. 96-7p, 1996 WL 374186
(July 2, 1996). Given the fact this case is being remanded on other
grounds, the ALJ shall apply the new guidelines under Soc. Sec. R.
16-3p in evaluating Claimant’s testimony regarding “subjective

10

symptoms”.

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 31st day of March, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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