Richmond 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
STEFANIE A. RICHMOND,
NANCY A. BERRYHILL, Acting
Commissioner of Social
Case No. CIV-16-032-KEW
OPINION AND ORDER
Plaintiff Stefanie A. Richmond (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.
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
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 13, 1969 and was 45 years old at the
time of the ALJ’s decision.
Claimant completed her high school
Claimant has worked in the past as a dental assistant,
chiropractor, checker at a grocery store, and waitress.
alleges an inability to work beginning March 31, 2012 due to
limitations resulting from irritable bowel syndrome, muscle and
neck pain, fibromyalgia, migraine headaches, and PTSD.
On March 23, 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.
applications were denied initially and upon reconsideration.
June 5, 2014, an administrative hearing was held by video before
Administrative Law Judge (“ALJ”) Doug Gabbard, II with Claimant
appearing in Poteau, Oklahoma and the ALJ presiding from McAlester,
He issued an unfavorable decision on August 13, 2014.
The Appeals Council denied review of the ALJ’s decision on December
As a result, the decision of the ALJ represents the
Commissioner’s final decision for purposes of further appeal.
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 sedentary work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) reaching an
RFC which is not supported by substantial evidence; and (2) finding
at step five that Claimant could perform other jobs.
In his decision, the ALJ found Claimant suffered from the
severe impairments of irritable bowel syndrome, malnutrition,
fibromyalgia, anxiety disorder, affective disorder, and personality
The ALJ determined Claimant retained the RFC
to perform sedentary work except that she was limited to work which
allows for the performance of simple unskilled work that can be
learned on the job in a short period of time with little to no
concrete supervision and incidental interpersonal contact with
supervisors and co-workers such as assembly work secondary to her
concentration and attention with regular work breaks and no work
involving line production speed tasking and contact with the
After consulting with a vocational expert, the ALJ concluded
that Claimant could perform the representative jobs of document
preparer and clerical worker, both of which the ALJ determined
existed in sufficient numbers in both the regional and national
economies. (Tr. 25). As a result, the ALJ determined Claimant was
not under a disability from March 31, 2012 through the date of the
Claimant contends that the ALJ erred in his RFC assessment.
Claimant first asserts that the ALJ failed to accommodate the
limitations brought about by her fibromyalgia in the RFC. Claimant
contends this condition causes painful range of motion in her neck
and lower back.
While the consultative physician, Dr. Wojciech L.
Dulowski, found Claimant met the tender point testing criteria to
establish a diagnosis of fibromyalgia, he did not find any range of
motion limitations, joint problems, gait instability, or loss of
The focus of a disability determination is on the functional
consequences of a condition, not the mere diagnosis. See e.g.
Coleman v. Chater, 58 F.3d 577, 579 (10th Cir. 1995)(the mere
presence of alcoholism is not necessarily disabling, the impairment
must render the claimant unable to engage in any substantial gainful
employment.); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)(the
mere diagnosis of arthritis says nothing about the severity of the
condition), Madrid v. Astrue, 243 Fed.Appx. 387, 392 (10th Cir.
2007)(the diagnosis of a condition does not establish disability,
the question is whether an impairment significantly limits the
2000)(unpublished), 2000 WL 1028250, 1 (disability determinations
turn on the functional consequences, not the causes of a claimant's
The ALJ was not required to presume that Claimant’s
fibromyalgia significantly limited her ability to engage in basic
restriction for the RFC.
Moreover, Claimant appears to fault the ALJ for failing to
obtain medical source statements from the medical professionals.
The regulations generally require that the adjudicators request
medical source statements from acceptable medical sources with
Soc. Sec. R. 96–5p.
However, nothing in the
regulations requires the reversal and remand of a case because such
statements were not obtained.
Indeed, the regulations expressly
state that “the absence of such a statement in a consultative
examination report will not make the report incomplete.” 20 C.F.R.
§ 404.1519n(c)(6). Therefore, the failure of the ALJ to obtain a
Robison v. Colvin, 2013 WL 5450261, *2-3
Claimant next challenges the ALJ’s RFC for failing to include
a requirement to be near a bathroom because of her persistent
diarrhea and vomiting brought about by her gastrointestinal issues.
malnutrition, and chronic diarrhea.
concluded that the medical record did not establish that her
irritable bowel syndrome symptoms required her to have immediate
access to a bathroom and excessive rest breaks.
He also found no
problems in the record with incontinence or repetitive soiling on
her person secondary to her unremitting irritable bowel syndrome
were reported to Dr. Hoang or the medical attendants at the
facilities in which she sought treatment. (Tr. 23). The record is
indeed devoid of the level of restriction to which Claimant
While she reported diarrhea, the frequency and effect
of the condition was never found to be remarkable in the medical
records of her treating physician.
No error is found in the
failure to include further restrictions in the RFC for this
restrictions for her documented mental impairments.
record documents Claimant’s anxiety, stress, depression, and social
(Tr. 278-79, 283-85, 296-97, 406, 438, 440).
November 8, 2012, Dr. Robert Spray, a consultative examiner,
diagnosed Claimant with generalized anxiety disorder with PTSD
issues, R/O bipolar II disorder and borderline personality disorder
(provisional). He found no problems with self-care, social skills,
concentration, and persistence.
He did conclude that Claimant’s
anxiety-based symptoms could potentially interfere with her ability
to complete tasks in a timely manner.
The ALJ gave
inability to complete tasks in a timely manner was accommodated in
the RFC by not requiring her to work at production line speeds and
providing for regular work breaks.
Speed of production does not equate with completing tasks in
a timely manner.
Production speed is a specific type of task
requirement for timely task completion.
capacity consists of those activities that a claimant can still
perform on a regular and continuing basis despite his or her
(10th Cir. 2001).
White v. Barnhart, 287 F.3d 903, 906 n. 2
A residual functional capacity assessment “must
include a narrative discussion describing how the evidence supports
each conclusion, citing specific medical facts ... and nonmedical
evidence.” Soc. Sec. R. 96–8p.
The ALJ must also discuss the
individual's ability to perform sustained work activities in an
ordinary work setting on a “regular and continuing basis” and
describe the maximum amount of work related activity the individual
can perform based on evidence contained in the case record. Id.
ambiguities in the evidence in the case record were considered and
On remand, the ALJ shall address the restriction
found by Dr. Spray - an opinion given great weight by the ALJ concerning timely completion and modify the RFC as necessary to
accommodate the restriction.
Step Five Evaluation
Claimant also contends the ALJ’s hypothetical questioning of
the vocational expert was flawed since the questions did not
include an accurate RFC.
Since the ALJ will be evaluating Dr.
Spray’s opinion and further defining his RFC, he should also
alterations to the RFC that he might make.
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 31st day of March, 2017.
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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