Burgess v. Social Security Administration

Filing 22

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,

)
)
)
)
)
)
)
)
)
)
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Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social
Security Administration,
Defendant.

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.

Claimant

appeals the decision of the Administrative Law Judge (“ALJ”) and
asserts that the Commissioner erred because the ALJ incorrectly
determined

that

discussed

below,

Claimant
it

is

was
the

not

disabled.

finding

of

this

For

the

Court

reasons

that

the

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).
Security

Act

“only

if

A claimant is disabled under the Social
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

§423(d)(2)(A).

in

the

national

economy.

.

.”

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:

This Court’s review is limited to

first, whether the decision was supported by

1

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).

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substantial

evidence;

and,

standards were applied.

second,

whether

the

correct

legal

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.”
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 & 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’s Background
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

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injuries to her neck, back, hip, knee, ankle, shoulders, arms, and
hand.
Procedural History
On

December

5,

2012,

Claimant

protectively

filed

for

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,

an

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
9, 2016.

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 four 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 her past relevant work.
also found Claimant could perform light work.

Errors Alleged for Review

4

He

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
spine

status

post

remote

cervical

fusion,

osteoarthritis,

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.

18).
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.

(Tr. 16).

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.

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(Tr. 19-20).

As a result, the ALJ determined Claimant was not

under a disability from July 15, 2011 through the date of the
decision.

(Tr. 20).

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 without
explanation.

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
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believing the listing was not an issue in the case because counsel
stated at the hearing that he was not arguing that any impairment
met

or

equaled

a

listing.

Nevertheless,

a

social

security

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.

On

remand, the ALJ shall provide an explanation for finding Claimant
did not meet or equal Listing 1.04A.
Step Four and Five Evaluation
Claimant

contends

the

hypothetical

questioning

of

the

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.

7

(Tr. 15).

Claimant’s past

relevant

work

required

reaching,

handling,

and

fingering.

Dictionary of Occupational Titles, #254.354-014, #239.362-014,
#166.267-038, #169.167-134.
A vocational expert's testimony can provide a proper basis for
an

ALJ's

determination

where

the

claimant's

impairments

are

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.

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Credibility Determination
The ALJ determined that “Claimant’s subjective allegations far
outweighed the objective medical evidence.”

(Tr. 18).

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 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, 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.

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IT IS SO ORDERED this 31st day of March, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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