Swearengin v. Social Security Administration
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
NANCY A. BERRYHILL,
Acting Commissioner of the Social )
Security Administration, 1
Case No. CIV-15-447-SPS
OPINION AND ORDER
The claimant Robert Wayne Swearengin requests judicial review pursuant to 42
U.S.C. § 405(g) of the decision of the Commissioner of the Social Security
Administration denying her application for benefits under the Social Security Act. He
appeals the decision of the Commissioner and asserts that the Administrative Law Judge
(“ALJ”) erred in determining he was not disabled. For the reasons set forth below, the
decision of the Commissioner is hereby REVERSED and the case is REMANDED for
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
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 Colvin as the Defendant in
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[.]” 42 U.S.C. § 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
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 two inquiries: whether the decision
was supported by substantial evidence, and whether the correct legal standards were
applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997) [citation omitted].
The term “substantial evidence” requires “‘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). However, the Court may not reweigh the
evidence nor substitute its discretion for that of the agency. See Casias v. Secretary of
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 the claimant to establish that he has a
medically severe impairment (or combination of impairments) that significantly limits his ability to do
basic work activities. Id. §§ 404.1521, 416.921. If the claimant is engaged in substantial gainful activity,
or if his impairment is not medically severe, 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. If the
claimant suffers from a listed impairment (or impairments “medically equivalent” to one), he is
determined to be disabled without further inquiry. Otherwise, the evaluation proceeds to step four, where
the claimant must establish that he lacks the residual functional capacity (RFC) to return to his past
relevant work. The burden then shifts to the Commissioner to establish at step five that there is work
existing in significant numbers in the national economy that the claimant can perform, taking into account
his age, education, work experience, and RFC. Disability benefits are denied if the Commissioner shows
that the claimant’s impairment does not preclude alternative work. See generally Williams v. Bowen, 844
F.2d 748, 750-51 (10th Cir. 1988).
Health & Human Services, 933 F.2d 799, 800 (10th Cir. 1991). Nevertheless, the Court
must review the record as a whole, and “[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.
The claimant was born on December 9, 1965, and was forty-eight years old at the
time of the administrative hearing (Tr. 33, 169). He completed twelfth grade, and has
worked as a vending machine servicer (Tr. 20, 187). The claimant alleges he has been
unable to work since October 26, 2012, due to a stroke and walking problems (Tr. 186).
On February 20, 2013, the claimant applied for disability insurance benefits under
Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and for supplemental security
income benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85. His
applications were denied.
ALJ James Bentley held an administrative hearing and
determined the claimant was not disabled in a written decision dated March 17, 2014
The Appeals Council denied review, so the ALJ’s written decision
represents the final decision of the Commissioner 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 retained the residual functional capacity (“RFC”) to perform less than the
full range of light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.697(b), i. e., he
could lift twenty pounds occasionally and ten pounds frequently and stand/walk and sit
for six hours in an eight-hour workday, and that he could frequently, but not constantly,
handle and finger bilaterally. The ALJ further restricted the claimant from hazards such
as heights or machinery, and stated that the claimant was able to avoid ordinary hazards
in the workplace such as boxes on the floor, doors left ajar, or approaching people or
Additionally, the ALJ found he needed a sit/stand option, defined as a
temporary change in position from sitting to standing and vice versa with no more than
one change in position every twenty minutes and without leaving the workstation so as
not to diminish pace or production. Finally, the ALJ limited the claimant to occasional
contact with coworkers, supervisors, and the general public (Tr. 15). The ALJ concluded
that although the claimant could not return to his past relevant work, he was nevertheless
not disabled because there was work he could perform, i. e., small products assembler,
conveyor line bakery worker, and parking-lot attendant (Tr. 20-21).
The claimant contends that the ALJ erred by: (i) improperly weighing his
subjective symptoms and (ii) failing to account for his nonsevere impairment of insomnia
in formulating the RFC. The Court agrees with the claimant’s first contention.
The ALJ determined that the claimant had the severe impairments of hypertension,
status post cerebrovascular accident with mild facial droop, obesity, and history of
tobacco, cannabis, and intravenous methamphetamine abuse, as well as nonsevere
impairments of anxiety and insomnia (Tr. 12). The medical evidence reflects that the
claimant had a stroke and was admitted to the hospital on October 29, 2012 (Tr. 272). He
was discharged as medically stable with improved left-sided weakness (Tr. 272-273). An
MRI of the brain revealed acute/subacute hemorrhage in the right thalamus and minimal
surrounding edema with minimal mass effect (Tr. 284). A view of the claimant’s chest
was suggestive of long-standing hypertension (Tr. 306).
Treatment notes regarding the claimant’s blood pressure variously note that it is
under fair control (Tr. 332-350). In April 2013, the claimant’s treating clinic sent him to
the hospital because his blood pressure did not respond to medications but he had been
splitting his medications and not taking them as directed (Tr. 344), and it improved in
July 2013, but worsened again in August 2013 (Tr. 350, 443).
On April 23, 2013, Dr. Adel Malati conducted a consultative physical examination
(Tr. 323). At the exam, the claimant walked without an assistive device, had full range of
motion and 5/5 grip strength, and was able to heel/toe walk without difficulty and had a
nice, steady gait (Tr. 326).
Dr. Malati’s clinical impression was status post
cerebrovascular accident with mild facial droop, hypertension, hypercholesterolemia, and
history of tobacco, pot, and methamphetamine use (Tr. 326).
At the administrative hearing, the claimant testified that he has problems with his
vision, with numbness in both hands, and numbness in the left leg (Tr. 34-36). He stated
that he does not use any assistive devices (Tr. 35). Additionally, he reported problems
emptying his bladder (Tr. 36). He stated that he only drives two blocks to the post office,
but does that every day (Tr. 37). He further testified that his blood pressure will spike
every day, and that the left side of his face droops as a result of his stroke (Tr. 38). The
claimant also testified that he takes medication because he gets really agitated, and that
he gets about four hours of sleep each night and sleeps about forty-five minutes during
the day (Tr. 40). As for his activities, he testified that he mows the lawn every week to
ten days, and takes two breaks while doing so, and that he also vacuums the house every
week and takes out the trash (Tr. 41). In response to questioning, the claimant stated that
he can stand for about thirty minutes before needing to sit or lay down (Tr. 42). The
claimant also stated that he used illegal drugs three days before his stroke, and that drug
use and cigarette use “probably did not help” (Tr. 46). When asked to name his most
significant problems, the claimant named his legs, his hands, and his vision, in that order
In his written opinion, the ALJ extensively summarized the claimant’s hearing
testimony, as well as the available medical records (Tr. 14-20). As to the claimant’s
credibility, the ALJ used the typical boilerplate language, stating that his “statements
concerning the intensity, persistence, and limiting effects of these symptoms are not
entirely credible,” but then went on to explain his reasoning, including: (i) the medical
evidence did not support his allegations; (ii) his onset date coincided with the day he
reported last using methamphetamine intravenously; (iii) he reported his blood pressure
spiked every day, but treatment notes reflected that his blood pressure had normalized;
(iv) he reported blurry vision with his blood pressure problems, but on exam he had 20/25
in the left eye and 20/30 in the right eye; (v) his condition had not worsened since he
collected unemployment benefits; and (vi) his reported activities of raking leaves,
regularly mowing the lawn, and shopping were inconsistent with his claims of disabling
limitations (Tr. 16-20).
The claimant contends, inter alia, that the ALJ erred in analyzing his credibility.
At the time of the ALJ’s decision, a credibility determination was governed by Soc. Sec.
Rul. 96-7p. See, e. g., Hardman v. Barnhart, 362 F.3d 676, 678 (10th Cir. 2004), quoting
Soc. Sec. Rul. 96-7p, 1996 WL 374186 (July 2, 1996). But the Commissioner issued a
ruling on March 16, 2016, that eliminated the term “credibility” and provided new
guidance for evaluating the intensity, persistence, and limiting effects of a claimant’s
symptoms. Soc. Sec. Rul. 16-3p, 2016 WL 1119029 (Mar. 16, 2016). “Generally, if an
agency makes a policy change during the pendency of a claimant’s appeal, the reviewing
court should remand for the agency to determine whether the new policy affects its prior
decision.” Frantz v. Astrue, 509 F.3d 1299, 1302 (10th Cir. 2007), quoting Sloan v.
Astrue, 499 F.3d 883, 889 (8th Cir. 2007). Although the ALJ’s credibility analysis was
arguably sufficient under the old standard, the record does not reflect how the ALJ would
have evaluated the claimant’s subjective statements under Soc. Sec. Rul. 16-3p. 3
Consequently, the decision of the Commissioner must be reversed and the case remanded
to the ALJ for evaluation in accordance with the new standard.
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.
While it is arguable that the evidence cited by the ALJ in support of his credibility determination would
likewise have satisfied Soc. Sec. Rul. 16-3p, thus obviating the need for reversal and remand, see, e. g.,
Wellenstein v. Colvin, 2015 WL 5734438, at *11 (N.D. Iowa Sept. 30, 2015) (noting that the Court of
Appeals for the Eighth Circuit denied remand for consideration of a new social security ruling upon
finding that “although the policy changed during the pendency of the case, the policy did not affect the
case.”), citing Van Vickle v. Astrue, 539 F.3d 825, 829 n.6 (8th Cir. 2008), the undersigned Magistrate
Judge finds that any re-evaluation of the evidence in light of the new standard is not for this court to make
on review but rather for the ALJ to consider in the first instance.
The Commissioner’s decision is accordingly REVERSED and the case REMANDED for
further proceedings consistent herewith.
DATED this 2nd day of March, 2017.
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?