Cheater 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
SHANNON A. CHEATER,
NANCY A. BERRYHILL, Acting
Commissioner of Social
Case No. CIV-16-142-KEW
OPINION AND ORDER
Plaintiff Shannon A. Cheater (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 42 years old at the time of the ALJ’s decision.
Claimant completed her high school education.
Claimant has worked
in the past as a material handler and daycare worker.
alleges an inability to work beginning August 22, 2012 due to
limitations resulting from diabetes, high blood pressure, asthma,
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 benefits under Title XVI (42
U.S.C. § 1381, et seq.) of the Social Security Act.
applications were denied initially and upon reconsideration.
Administrative Law Judge (“ALJ”) James Bentley by video with
Claimant appearing in Poteau, Oklahoma and the ALJ presiding from
By decision dated October 16, 2014, the ALJ
denied Claimant’s requests for benefits.
The Appeals Council
denied review of the ALJ’s decision on March 8, 2016.
decision for purposes of further appeal.
As a result,
20 C.F.R. §§ 404.981,
Decision of the Administrative Law Judge
The ALJ made his decision at step five 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 light work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) reaching an RFC
hypothetical questions to the vocational expert which did not
contain all of Claimant’s limitations; (3) failing to perform a
proper credibility analysis; and (4) failing to fully develop the
In his decision, the ALJ found Claimant suffered from the
severe impairments of diabetes mellitus, obesity, deafness in the
right ear, asthma, hypertension, and anxiety.
determined Claimant retained the RFC to perform light work except
occasionally and ten pounds frequently, pushing/pulling limitations
consistent with the weight limitations, stand/walk for six hours
out of an eight hour workday, and sitting for six to eight hours
out of an eight hour workday.
Claimant would need a sit/stand
option, defined as a temporary change in position from sitting to
standing, with no more than one change in position every 20 minutes
and without leaving the workstation so as not to diminish pace or
concentrate exposure to dust, fumes, odors, poorly ventilated
areas, and loud noises.
Claimant should never climb ropes,
ladders, and scaffolds. She was limited to only occasional contact
with co-workers, supervisors, and the general public.
After consultation with a vocational expert, the ALJ found Claimant
could perform the representative jobs of electrical accessory
assembler and conveyor line bakery worker, both of which the ALJ
found existed in sufficient numbers in both the regional and
As a result, the ALJ determined
Claimant was not disabled from June 1, 2009 through the date of the
Claimant contends the RFC is not supported because the ALJ did
not account for her diabetic neuropathy at step two in finding it
as a severe impairment and in the limitations in the RFC.
considered the evidence of Claimant’s peripheral neuropathy in the
discounted its effects upon her ability to engage in basic work
activity because Claimant was walking and moving but had aching and
improvement with changes in her diet and exercise program and ‘was
very happy with the way she was feeling at the time.”
also had mixed up her diabetes medication and had not been taking
it as prescribed.
She also did not take insulin despite
having an elevated blood sugar reading.
Medical professionals had
noted that Claimant had refused to take insulin on at least four
(Tr. 512, 553, 558, 612).
The ALJ may consider the
failure to follow recommended medical treatment in his denial of
Frey v. Bowen, 816 F.2d 508, 517 (10th Cir. 1987).
“[R]esidual functional capacity consists of those activities
that a claimant can still perform on a regular and continuing basis
despite his or her physical limitations.”
White v. Barnhart, 287
F.3d 903, 906 n. 2 (10th Cir. 2001).
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.
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.
The ALJ must “explain how any material
inconsistencies or ambiguities in the evidence in the case record
were considered and resolved.”
The medical record does not support a finding that Claimant’s
neuropathy caused the level of limitation she now urges. The ALJ’s
failure to include neuropathy as a severe impairment at step two or
to include any further restrictions in the RFC attributable to this
condition was not error.
Step Five Analysis
Claimant next asserts the ALJ improperly found Claimant could
perform the representative jobs based upon the testimony of the
This contention is based upon the assumption
that the ALJ should have included additional restrictions based
upon Claimant’s neuropathy in the RFC and, consequently, the
hypothetical questioning of the vocational expert.
In positing a hypothetical question to the vocational expert,
the ALJ need only set forth those physical and mental impairments
accepted as true by the ALJ.
(10th Cir. 1990).
Additionally, the hypothetical questions need
Talley v. Sullivan, 908 F.2d 585, 588
Decker v. Chater, 86 F.3d 953, 955 (10th Cir.
Moreover, Defendant bears the burden at step five of the
sequential analysis. Hargis, 945 F.2d at 1489. The questioning of
the vocational expert accurately mirrored Claimant’s limitations.
Claimant contends the ALJ did not conduct a proper credibility
analysis and specifically indicates he should have included an
Claimant’s ability to perform her daily activities, including
housekeeping chores, shopping, driving, and attending PTA meetings.
She required a break periodically.
He included a sit/stand option
in the RFC “[b]ecause of the fatigue caused by diabetes and
It is well-established that “findings as to credibility should
be closely and affirmatively linked to substantial evidence and not
just a conclusion in the guise of findings.”
F.3d 387, 391 (10th Cir. 1995).
Kepler v. Chater, 68
“Credibility determinations are
peculiarly in the province of the finder of fact” and, as such,
will not be disturbed when supported by substantial evidence.
The ALJ properly analyzed and considered Claimant’s testimony
in arriving at the RFC.
Moreover, he accommodated the primary
limitation to which she testified.
The medical record does not
suggest limitations due to side effects from any of the medications
This Court finds no error in the ALJ’s consideration
of Claimant’s testimony.
Duty to Develop the Record
Claimant asserts the ALJ should have obtained a consultative
examination “to get a better understanding of the extent of
disability in a social security case is on the claimant, and to meet
this burden, the claimant must furnish medical and other evidence
of the existence of the disability.
Branam v. Barnhart, 385 F.3d
1268, 1271 (10th Cir. 2004) citing Bowen v. Yuckert, 482 U.S. 137,
146 (1987). A social security disability hearing is nonadversarial,
however, and the ALJ bears responsibility for ensuring that “an
consistent with the issues raised.”
Id. quoting Henrie v. United
States Dep't of Health & Human Services, 13 F.3d 359, 360-61 (10th
As a result, “[a]n ALJ has the duty to develop the
record by obtaining pertinent, available medical records which come
to his attention during the course of the hearing.”
Carter v. Chater, 73 F.3d 1019, 1022 (10th Cir. 1996).
exists even when a claimant is represented by counsel.
Dept. of Health & Human Services, 5 F.3d 476, 480 (10th Cir. 1993).
The court, however, is not required to act as a claimant’s advocate.
Henrie, 13 F.3d at 361.
The duty to develop the record extends to ordering consultative
examinations and testing where required. Consultative examinations
are used to “secure needed medical evidence the file does not
contain such as clinical findings, laboratory tests, a diagnosis or
Normally, a consultative examination is required if
(1) The additional evidence needed is not contained in
the records of your medical sources;
(2) The evidence that may have been available from your
treating or other medical sources cannot be obtained for
reasons beyond your control, . . .
(3) Highly technical or specialized medical evidence that
we need is not available from your treating or other
(4) A conflict, inconsistency, ambiguity or insufficiency
in the evidence mus be resolved, and we are unable to do
so by recontacting your medical source; or
(5) There is an indication of a change in your condition
that is likely to affect your ability to work.
20 C.F.R. § 416.909a(2)(b).
None of these bases for ordering a consultative examination
exists in the record.
The record of Claimant’s diabetes and
associated conditions is adequately represented in the medical
The ALJ did not violate his duty to develop the record by
not ordering further medical evaluations.
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 25th day of September, 2017.
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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