Murray v. Social Security Administration

Filing 21

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
DARRELL E. MURRAY,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the Social
Security Administration, 1
Defendant.

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) Case No. CIV-15-459-SPS
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OPINION AND ORDER
The claimant Darrell E. Murray requests judicial review of a denial of benefits by
the Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g).
He appeals the Commissioner’s decision and asserts the Administrative Law Judge
(“ALJ”) erred in determining he was not disabled. For the reasons set forth below, the
Commissioner’s decision is hereby REVERSED and the case REMANDED to the ALJ
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

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.

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[.]” 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. Secretary of Health & Human Services, 933 F.2d 799,
2

Step one requires the claimant to establish that he is not engaged in substantial gainful activity. 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. If the claimant is engaged in
substantial gainful activity, or his impairment is not medically severe, disability benefits are denied. If he
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, he
is regarded as disabled and awarded benefits without further inquiry. Otherwise, the evaluation proceeds
to step four, where the claimant must show that he lacks the residual functional capacity (RFC) to return
to his 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 his age, education, work experience
and RFC. Disability benefits are denied if the claimant can return to any of his past relevant work or if his
RFC does not preclude alternative work. See generally Williams v. Bowen, 844 F.2d 748, 750-51 (10th
Cir. 1988).

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800 (10th Cir. 1991). But 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.
Claimant’s Background
The claimant was born on February 8, 1962, and was fifty-two years old at the
time of the administrative hearing (Tr. 150). He has at least an eighth grade education, 3
and has no past relevant work (Tr. 59). The claimant alleges that he has been unable to
work since an amended onset date of March 15, 2012, due to back issues, arthritis, gout,
problems with his thyroid, mental illness, and a nervous disorder (Tr. 167).
Procedural History
The claimant applied for supplemental security income benefits under Title XVI
of the Social Security Act, 42 U.S.C. §§ 1381-85, on April 12, 2012. The claimant’s
application was denied. ALJ Luke Liter conducted an administrative hearing and found
that the claimant was not disabled in a written decision dated June 27, 2014 (Tr. 15-28).
The Appeals Council denied review, so the ALJ’s decision represents the
Commissioner’s final decision for purposes of this appeal. See 20 C.F.R. § 416.1481.

3

Claimant reported on his Disability Report and to Dr. Paris, Dr. Danaher, and Dr. Schatzman that he
completed ninth grade (Tr. 168, 252, 286, 290). The claimant testified at the March 17, 2014, hearing
that he completed eighth grade (Tr. 42).

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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, i. e., he could lift ten pounds frequently and twenty pounds occasionally, and
sit/stand/walk for six hours in an eight-hour workday with occasional balancing,
kneeling, stooping, crouching, and crawling (Tr. 20). The ALJ further found the claimant
was unable to tolerate exposure to hazards such as unprotected heights or dangerous
moving machinery parts (Tr. 20). The ALJ limited the claimant to simple and some
complex tasks, defined as semi-skilled work with a specific vocational preparation of
three to four (Tr. 20). The ALJ further limited the claimant to no contact with the public,
and superficial contact, defined as brief and cursory, with co-workers and supervisors
(Tr. 20). The ALJ concluded that the claimant was not disabled because there were jobs
in the regional and national economies that he could perform, i. e., label coder,
merchandise marker, and housekeeping/cleaner (Tr. 27-28).
Review
The claimant contends that the ALJ erred: (i) by failing to properly assess his RFC
and finding that there was work he could perform, (ii) by improperly analyzing the
medical and nonmedical source evidence, and (iii) by improperly assessing his
credibility. The Court finds that the ALJ did err in determining the claimant’s RFC, and
the decision of the Commissioner must therefore be reversed.
The ALJ found that the claimant’s major depressive disorder, anxiety disorder,
obesity, mild lumbar spine spurring, and mild acromioclavicular joint arthropathy were
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severe impairments, and that his history of a single seizure was non-severe (Tr. 17). The
relevant medical record reveals the claimant presented to Dr. Larry Sumner on May 19,
2010, for, inter alia, shoulder and neck pain (Tr. 280). Dr. Sumner noted the claimant’s
right shoulder was tender to abduction with decreased range of motion and crepitus, and
that he had decreased range of motion in his neck (Tr. 280). Dr. Sumner instructed the
claimant to not use his right arm for a few weeks (Tr. 280). An x-ray of the claimant’s
lumbar spine taken July 25, 2012, was unremarkable except for mild endplate spurring
(Tr. 263). An x-ray of the claimant’s right shoulder taken the same day revealed mild
acromioclavicular joint arthropathy (Tr. 263). The claimant next visited Dr. Sumner on
August 14, 2012, for a follow-up appointment after he was treated at the Tahlequah City
Hospital Emergency Department four days earlier for heat exhaustion and a seizure
(Tr. 266-80). A CT scan of the claimant’s brain performed on August 10, 2012, was
normal (Tr. 274).

Dr. Sumner diagnosed the claimant with seizure disorder, and

recommended he not drive (Tr. 279). The claimant next sought treatment from Dr.
Sumner on November 11, 2013, after he fell from a ladder (Tr. 345). The claimant
reported back pain and weakness, but no arthritis, joint pain, joint swelling, muscle
cramps, or stiffness (Tr. 345). Dr. Sumner diagnosed the claimant with a lumbar sprain
and seizure disorder, and recommended the claimant refrain from heavy lifting (Tr. 346).
At a follow-up appointment on December 13, 2013, the claimant reported his back pain
was improving, and Dr. Sumner referred him for an EEG, the results of which showed no
indication of a seizure disorder (Tr. 336, 344). The claimant returned to Dr. Sumner on
February 17, 2014, and reported constant shoulder and back pain (Tr. 341-42). Dr.
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Sumner noted there was no strong evidence of a specific problem, and found that the
claimant had normal range of motion in his neck (Tr. 341-42).
Additionally, Dr. Sumner filled out a form titled “Residual Functional Capacity to
do Work Related Activities” on February 17, 2014 (Tr. 331-35). In it, he opined that
during an eight-hour work day, the claimant could sit for one hour at a time, stand for
ten- to-thirty minutes at a time, walk for ten-to-thirty minutes at a time, and could do each
activity for one hour total (Tr. 331). Dr. Sumner also opined that the claimant could
occasionally lift/carry up two twenty pounds, and could never lift/carry anything greater
than twenty pounds (Tr. 331). He found the claimant’s use of his hands for repetitive
movement, including grasping, was limited bilaterally (Tr. 332).

Furthermore, Dr.

Sumner found that the claimant could occasionally reach, handle, and finger, but could
never bend, squat, crawl, climb, or work around unprotected heights (Tr. 332). Dr.
Sumner indicated the claimant’s bilateral shoulder pain and weakness, as well as his low
back pain, supported his opinions (Tr. 332).
On June 12, 2012, Dr. Wojciech Dulowski performed a consultative physical
examination (Tr. 257-62). Dr. Dulowski noted the claimant’s grip strength was 5/5 with
good gross and fine manipulation (Tr. 258). The claimant had equal strength and normal
passive range of motion in his upper extremities, but extreme passive range of motion
was “very painful” in his right shoulder (Tr. 258). Dr. Dulowski further noted the
claimant’s gait was slow, safe, and stable, but that he had difficulty walking on his heels
and toes due to pain (Tr. 258, 260). As to the claimant’s back, Dr. Dulowski found the
claimant had decreased lordosis and spasms in his paravertebral muscles, but normal
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alignment and passive range of motion (Tr. 258). He assessed the claimant with, inter
alia, history of chronic back pain, probably mechanical, neurologically intact; history of
morbid obesity, history of gout, and history of hypothyroidism (Tr. 258).
Dr. Ronald Schatzman performed a consultative physical examination on May 21,
2013 (Tr. 322-29). He noted the claimant had full range of motion in his lumbosacral
spine, cervical spine, and thoracic spine without tenderness, pain, or muscle spasm
(Tr. 324, 328). Dr. Schatzman also noted the claimant’s gait was safe and stable with
appropriate speed, and that his heel walking and toe walking were normal (Tr. 324, 328).
The claimant had full range of motion in his shoulders, hands, wrists, and fingers, with
full grip strength (Tr. 324-27). Dr. Schatzman assessed the claimant with, inter alia,
obesity, history of seizures, gout by history, back pain by history, thyroid disease by
history, and neck and leg pain by history (Tr. 324).
State reviewing physician Dr. Andrea Fritz completed a Physical Residual
Functional Capacity Assessment on October 24, 2012, and found the claimant capable of
performing light work with the environmental limitation of avoiding concentrated
exposure to hazards (machinery, heights, etc.) due to his seizure history (Tr. 312-20). On
June 19, 2013, a second state reviewing physician assessed an identical RFC (Tr. 88-89).
At the administrative hearing, the claimant testified that he was unable to work
because of gout, swelling in his feet, low back pain, and problems with his elbows, hands,
and grip (Tr. 43). He testified that his back pain is constant, but varies in intensity
(Tr. 44, 58-59). The claimant further testified that he is most comfortable in a recliner
with his feet elevated, and that he spends three to four hours in that position daily
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(Tr. 48). Additionally, he stated that he takes a one hour nap each day to relax his
muscles (Tr. 56). Regarding his pain medication, the claimant stated it took off “the
sharp edge,” and rated his pain at five on a scale of one to ten with medication (Tr. 48).
The claimant testified that he could sit for thirty minutes, stand for fifteen minutes, and
walk for fifteen minutes (Tr. 49-50). The claimant also testified that he has used a cane
since his August 2012 seizure, but forgot to bring it to the hearing (Tr. 51).
In his written opinion, the ALJ determined that the claimant’s mild
acromioclavicular joint arthropathy was a severe impairment at step two, but neglected to
include any limitations corresponding to this impairment in the claimant’s RFC at step
four or explain why no such limitations were needed (Tr. 20-26). Indeed, most of the
analysis at step four was devoted to discrediting the claimant’s complaints and essentially
calling into question the findings of severity at step two. What the ALJ should have done
instead was provide an explanation as to how an impairment found to be severe at step
two became so insignificant as to require no corresponding limitations in the RFC at step
four. See, e. g., Timmons v. Barnhart, 118 Fed. Appx. 349, 353 (10th Cir. 2004) (finding
the ALJ should have “explained how a ‘severe’ impairment at step two became
‘insignificant’ at step five.”); see also Hamby v. Astrue, 260 Fed. Appx. 108, 112 (10th
Cir. 2008) (“In deciding Ms. Hamby’s case, the ALJ concluded that she had many severe
impairments at step two. He failed to consider the consequences of these impairments,
however, in determining that Ms. Hamby had the RFC to perform a wide range of
sedentary work.”).

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Because the ALJ failed to explain how the claimant’s severe impairment of mild
acromioclavicular joint arthropathy at step two became so insignificant as to require no
limitations in his RFC at step four, the decision of the Commissioner must be reversed
and the case remanded to the ALJ for further analysis. If such analysis results in an
adjustment to the claimant’s RFC, the ALJ should then re-determine what work, if any,
the claimant can perform and ultimately whether he is disabled. 4
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.
Accordingly, the decision of the Commissioner is hereby REVERSED, and the case is
REMANDED for further proceedings consistent with this Opinion and Order.
DATED this 28th day of March, 2017.

____________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE

4

The claimant also contended that the ALJ failed to properly evaluate 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, which eliminated the term “credibility” and provided new
guidance for evaluating the intensity, persistence, and limiting effects of a claimant’s symptoms. Soc. Sec. Rul. 163p, 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.4
Consequently, the ALJ should evaluate the claimant’s subjective symptoms in accordance with the new standard on
remand.

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