McCarty v. Social Security Administration
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
FRANCES ALLIENE BERNICE
NANCY A. BERRYHILL,
Acting Commissioner of the Social )
Security Administration, 1
Case No. CIV-16-151-SPS
OPINION AND ORDER
The claimant Frances Alliene Bernice McCarty requests judicial review pursuant
to 42 U.S.C. § 405(g) of the decision of the Commissioner of the Social Security
Administration denying her application for benefits under the Social Security Act. She
appeals the decision of the Commissioner and asserts that the Administrative Law Judge
(“ALJ”) erred in determining she was not disabled. For the reasons set forth below, the
decision of the Commissioner is hereby REVERSED and the case is 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
On January 23, 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 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[.]” 42 U.S.C. § 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
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 two inquiries: whether the decision
was supported by substantial evidence, and whether the correct legal standards were
applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997) [citation omitted].
The term “substantial evidence” requires “‘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). However, the Court may not reweigh the
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 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. Id. §§ 404.1521, 416.921. If the
claimant is engaged in substantial gainful activity, or if his impairment is not medically severe,
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. If the claimant suffers from a listed
impairment (or impairments “medically equivalent” to one), he is determined to be disabled
without further inquiry. Otherwise, the evaluation proceeds to step four, where the claimant must
establish that he lacks the residual functional capacity (RFC) to return to his past relevant work.
The burden then shifts to the Commissioner to establish at step five that there is work existing in
significant numbers in the national economy that the claimant can perform, taking into account
his age, education, work experience and RFC. Disability benefits are denied if the Commissioner
shows that the claimant’s impairment does not preclude alternative work. See generally Williams
v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).
evidence nor substitute its discretion for that of the agency. See Casias v. Secretary of
Health & Human Services, 933 F.2d 799, 800 (10th Cir. 1991). Nevertheless, 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.
The claimant was born on May 1, 1959, and was fifty-five years old at the time of
the administrative hearing (Tr. 28). She earned a GED, and has worked as a cook,
kitchen helper, a combined cashier II and janitor, and informal waitress (Tr. 46, 198).
The claimant alleges she has been unable to work since July 3, 2012, due to a stroke,
depression, and back and neck problems (Tr. 197).
On March 14, 2012, the claimant applied for disability insurance benefits under
Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and for supplemental security
income benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85. Her
applications were denied. ALJ Doug Gabbard, II, held an administrative hearing and
determined the claimant was not disabled in a written decision dated December 8, 2014
The Appeals Council denied review, so the ALJ’s written decision
represents the final decision of the Commissioner for purposes of this appeal. See 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 found that
the claimant retained the residual functional capacity (RFC) to perform medium work as
defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c), except that she could occasionally
climb ramps and stairs, stoop, squat, kneel, crouch, and crawl, and that she could never
climb ladders, ropes, or scaffolds. Additionally, the ALJ determined that the claimant
could only occasionally reach overhead bilaterally, but could reach in all other directions
if she does not have to hold things weighing fifteen pounds or more when her arms are
extended (Tr. 14). The ALJ thus concluded that the claimant could return to her past
relevant work as a combination cashier II and janitor (Tr. 17-18).
The claimant’s sole contention of error is that the ALJ failed to account for her
nonsevere mental impairments in formulating her RFC. The Court agrees that the ALJ
erred in his analysis and his decision is not supported by substantial evidence.
The ALJ determined that the claimant had the severe impairment of degenerative
disc disease of the lumbar spine, as well as the nonsevere impairments of degenerative
disc disease of the cervical spine, hypertension, depression, anxiety, and history of
polysubstance abuse (Tr. 12-13). The medical evidence related to the claimant’s mental
impairments reveals treatment notes from the Choctaw Health Services Center that
included diagnoses of anxiety and depression, and also note that she refused a psych
consult and that she was able to tolerate her symptoms (Tr. 301-302, 304, 308, 311, 313).
On April 29, 2013, Dr. Kathleen Ward conducted a mental status examination of
the claimant. She noted that one of the claimant’s scores suggested some mild cognitive
functioning deficits, that substance abuse issues were ongoing, and that impulse control
gambling issues may be a focus of clinic attention (Tr. 338). She assessed the claimant
with amphetamine abuse, cannabis abuse, impulse control disorder NOS (gambling), and
cognitive disorder NOS mild (Tr. 339).
The claimant received some mental health treatment from September 2013
through January 2014 at the Choctaw Clinic in Talihina (Tr. 385). Treatment notes
reflect the claimant was diagnosed with major depressive disorder and originally
considered moderately ill, but by December 2013 it was characterized as mildly ill
(Tr. 389, 402). The most recent treatment note in the record, from January 23, 2014,
reflects that the claimant was emotional during the entire session due to family and
financial stressors (Tr. 386).
In 2013, state reviewing physicians determined that the claimant had mild
limitations in the three areas of functioning, and no episodes of decompensation, and
concluded that she had mild limitations to global functioning; therefore, they concluded
that her mental impairments were nonsevere (Tr. 59-60, 79-80).
In his written opinion at step two, the ALJ noted that the claimant had alleged
depression and anxiety, but found that her depression and anxiety were not severe
because she had only mild restriction in the three areas of functional limitation, and no
episodes of decompensation (Tr. 13).
He noted she had received minimal and
conservative treatment, and that he had considered the various opinions in the record, but
noted that the state reviewing physician had found she did not have a severe impairment
and gave that assessment great weight because he found it consistent with the evidence in
the record (Tr. 13).
At step four, the ALJ summarized the evidence with regard to the
claimant’s severe impairment, and made no further findings related to the claimant’s
mental impairments. He then concluded that she was not disabled (Tr. 14-18).
Here, the claimant alleges error with regard to the nonsevere mental impairments.
Because the ALJ did find that the claimant had severe impairments, any failure to find the
claimant’s additional impairments severe at step two is considered harmless error because
the ALJ would nevertheless be required to consider the effect of these impairments and
account for them in formulating the claimant’s RFC at step four. See, e. g., Carpenter v.
Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (“‘At step two, the ALJ must ‘consider the
combined effect of all of [the claimant’s] impairments without regard to whether any
such impairment, if considered separately, would be of sufficient severity [to survive step
two]. Nevertheless, any error here became harmless when the ALJ reached the proper
conclusion that Mrs. Carpenter could not be denied benefits conclusively at step two and
proceeded to the next step of the evaluation sequence.”), quoting Langley v. Barnhart,
373 F.3d 1116, 1123-24 (10th Cir. 2004) and 20 C.F.R. § 404.1523. See also Hill v.
Astrue, 289 Fed. Appx. 289, 292 (10th Cir. 2008) (“Once the ALJ finds that the claimant
has any severe impairment, he has satisfied the analysis for purposes of step two. His
failure to find that additional alleged impairments are also severe is not in itself cause for
reversal. But this does not mean the omitted impairment simply disappears from his
analysis. In determining the claimant’s RFC, the ALJ is required to consider the effect of
all of the claimant’s medically determinable impairments, both those he deems ‘severe’
and those ‘not severe.’”) [emphasis in original] [citations omitted]. But here the error
was not harmless, because although the ALJ mentioned each impairment at step two the
ALJ entirely failed to mention, much less consider the “cumulative effect of claimant’s
impairments,” at step four. Langley, 373 F.3d at 1123. 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.”) [unpublished opinion]. The Tenth
Circuit has held that “a conclusion that the claimant’s mental impairments are non-severe
at step two does not permit the ALJ simply to disregard those impairments when
assessing a claimant’s RFC and making conclusions at steps four and five.” Wells v
Colvin, 727 F.3d 1061, 1068-1069 (10th Cir. 2013). “To sum up, to the extent the ALJ
relied on his finding of non-severity as a substitute for adequate RFC analysis, the
Commissioner’s regulations demand a more thorough analysis.” Well, 727 F.3d at 1069.
Because the ALJ failed to properly evaluate all the claimant’s impairments singly
and in combination, the decision of the Commissioner is therefore reversed and the case
remanded to the ALJ for further analysis of the claimant’s impairments. If such analysis
results in any changes to the claimant’s RFC, the ALJ should re-determine what work the
claimant can perform, if any, and ultimately whether he is disabled.
The Court hereby FINDS that correct legal standards were not applied by the ALJ,
and the Commissioner’s decision is therefore not supported by substantial evidence. The
decision of the Commissioner is accordingly REVERSED and the case is REMANDED
for further proceedings consistent herewith.
DATED this 25th day of September, 2017.
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE
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