Burgess 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
RHONDA K. BURGESS,
NANCY A. BERRYHILL, Acting
Commissioner of Social
Case No. CIV-16-105-KEW
OPINION AND ORDER
Plaintiff Rhonda K. Burgess (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.
appeals the decision of the Administrative Law Judge (“ALJ”) and
asserts that the Commissioner erred because the ALJ incorrectly
Commissioner’s decision should be and is REVERSED and the case is
REMANDED to Defendant 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
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
(10th Cir. 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.”
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
court may not re-weigh the evidence nor substitute its discretion
for that of the agency.
Casias v. Secretary of Health & Human
Servs., 933 F.2d 799, 800 (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 was born on December 21, 1957 and was 56 years old at
the time of the ALJ’s decision.
and college education.
Claimant completed her high school
Claimant has worked in the past as an
advertising sales representative, customer service representative,
recruiter, and administrative clerk. Claimant alleges an inability
to work beginning July 15, 2011 due to limitations resulting from
injuries to her neck, back, hip, knee, ankle, shoulders, arms, and
disability insurance benefits under Title II (42 U.S.C. § 401, et
seq.) of the Social Security Act.
Claimant’s application was
denied initially and upon reconsideration.
On July 15, 2014,
administrative hearing was held before Administrative Law Judge
(“ALJ”) Edmund C. Werre in Tulsa, Oklahoma.
By decision dated
October 14, 2014, the ALJ denied Claimant’s request for benefits.
The Appeals Council denied review of the ALJ’s decision on February
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 four of the sequential
He determined that while Claimant suffered from severe
impairments, she did not meet a listing and retained the residual
functional capacity (“RFC”) to perform her past relevant work.
also found Claimant could perform light work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to find
Claimant’s impairments met or equaled a listing; (2) failing to
perform a proper determination at steps four and five; and (3)
performing an improper credibility analysis.
Consideration of a Listing
In his decision, the ALJ found Claimant suffered from the
severe impairments of degenerative disc disease of the cervical
fibromyalgia, and status post left hip replacement. (Tr. 15). The
ALJ determined Claimant retained the RFC to perform her past
relevant work as an advertising sales representative, customer
service representative, recruiter, and administrative clerk (Tr.
The ALJ also determined Claimant could perform light work
except that she could only occasionally lift up to 20 pounds and
frequently lift/carry up to 10 pounds, standing/walking for six
hours out of an eight hour workday, and sitting for six hours out
of an eight hour workday.
After consulting with a
vocational expert, the ALJ concluded that Claimant could perform
the representative jobs of motel clerk, general sales clerk, and
appointment clerk, all of which the ALJ determined existed in
sufficient numbers in both the regional and national economies.
As a result, the ALJ determined Claimant was not
under a disability from July 15, 2011 through the date of the
Claimant contends the ALJ should have determined that she met
or equaled Listing 1.04 regarding disorders of the spine.
condition meets or equals all of the specified criteria of the
Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
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
The ALJ found Claimant failed to meet Listing 1.04 without
His finding represents a “bare conclusion” which is
“beyond meaningful judicial review.”
Clifton v. Chater, 79 F.3d
1007, 1009 (10th Cir. 1996). The ALJ might have been “lulled” into
believing the listing was not an issue in the case because counsel
stated at the hearing that he was not arguing that any impairment
disability hearing is nonadversarial and an ALJ is charged with
“looking fully into the issues.”
Dixon v. Heckler, 811 F.2d 506,
510 (10th Cir. 1987); 20 C.F.R. § 404.944.
Claimant has identified evidence in the record which would
suggest spinal stenosis (Tr. 319, 366), nerve root compression (Tr.
162), decreased range of motion (Tr. 161, 532, 534), motor loss
(Tr. 523), sensory loss (Tr. 161), and positive straight leg
raising testing (Tr. 162, 286, 331, 371). On the surface, Claimant
has met the evidentiary burden of meeting or equaling Listing 1.04A
but the ALJ’s explanation for rejection of this argument lacks
sufficient detail to review his decision in this regard.
remand, the ALJ shall provide an explanation for finding Claimant
did not meet or equal Listing 1.04A.
Step Four and Five Evaluation
vocational expert failed to include problems with her arms, hands,
and wrists which are contained in the record.
94, 530, 577, 594, 601).
(Tr. 232, 237, 491-
The ALJ found Claimant’s osteoarthritis
constituted a severe impairment.
Dictionary of Occupational Titles, #254.354-014, #239.362-014,
A vocational expert's testimony can provide a proper basis for
reflected adequately in the hypothetical inquiries to the expert.
Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir. 1993).
The ALJ is
required to accept and include in the hypothetical question only
those limitations supported by the record.
F.3d 1196, 1203 (10th Cir. 1999).
Shepherd v. Apfel, 184
However, “‘[T]estimony elicited
by hypothetical questions that do not relate with precision all of
a claimant's impairments cannot constitute substantial evidence to
support the Secretary's decision.’”
Hargis v. Sullivan, 945 F.2d
1482, 1492 (10th Cir. 1991) quoting Ekeland v. Bowen, 899 F.2d 719,
724 (8th Cir. 1990).
On remand, the ALJ shall address whether
further restrictions should be included in the RFC for Claimant’s
limitations in her hands, wrists, and arms and include any such
restrictions in the assessment.
He shall also evaluate at step
four whether Claimant’s past relevant work required reaching and
manipulation which is beyond Claimant’s RFC.
The ALJ shall also
insure that Claimant’s impairments and functional limitations are
included in the hypothetical questioning.
The ALJ determined that “Claimant’s subjective allegations far
outweighed the objective medical evidence.”
ALJ’s decision in this matter, the Social Security Administration
has revised its rulings on evaluating statements related to the
disability claims - what heretofore has been known as “credibility”
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
evaluating Claimant’s testimony regarding “subjective symptoms”.
substantial evidence and the correct legal standards were not
applied. Therefore, this Court finds, in accordance with the fourth
sentence of 42 U.S.C. § 405(g), the ruling of the Commissioner of
Social Security Administration should be and is
REVERSED and the
matter REMANDED to Defendant for further proceedings.
IT IS SO ORDERED this 31st day of March, 2017.
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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