McGuire 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
SHEILA R. MCGUIRE,
NANCY A. BERRYHILL, Acting
Commissioner of Social
Case No. CIV-16-191-KEW
OPINION AND ORDER
Plaintiff Sheila R. McGuire (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 47 years old at the time of the ALJ’s decision.
Claimant completed her education through the eighth grade. Claimant
has worked in the past as a nurse’s assistant at a nursing home.
Claimant alleges an inability to work beginning March 1, 2011 due
to limitations resulting from lower back and right shoulder pain,
osteoarthritis, generalized pain, high blood pressure, bladder
problems, and insomnia.
disability insurance benefits under Title II (42 U.S.C. § 401, et
seq.) and 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.
By decision dated September 30, 2014, the ALJ denied
Claimant’s request for benefits. The Appeals Council denied review
of the ALJ’s decision on April 6, 2016.
purposes of further appeal.
As a result, the decision
20 C.F.R. §§ 404.981, 416.1481.
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 a range of sedentary work
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) ignoring
probative evidence related to Claimant’s shoulder and cervical spine
impairments; and (2) reaching an unsupported RFC which failed to
adequately address Claimant’s bilateral shoulder and cervical spine
Consideration of the Medical Evidence
In his decision, the ALJ found Claimant suffered from the
severe impairments of osteoarthritis, mild right acromioclavicular
joint arthropathy, and obesity.
The ALJ determined
Claimant retained the RFC to perform a range of sedentary work.
Claimant could occasionally stoop, kneel, crouch, crawl, and climb
ramps and stairs but never climb ladders, ropes, or scaffolds.
Claimant required a sit/stand option defined as a temporary change
in position every 20 minutes and without leaving the workstation so
as not to diminish pace or production.
After consultation with a vocational expert, the ALJ found
preparer, telephone clerk, and charge account clerk, all of which
he found existed in sufficient numbers in the regional and national
economies. (Tr. 21). As a result, the ALJ determined Claimant was
not disabled from March 1, 2011 through the date of the decision.
Claimant contends the ALJ ignored probative medical evidence
related to her shoulder and cervical spine impairments.
specifically contends the ALJ failed to account for Dr. Jack
Howard’s consultative examination findings.
Claimant on June 28, 2013.
Dr. Howard examined
Among his findings, Dr. Howard stated
She demonstrated a slow gait with decreased balance.
Heel to toe walking was accomplished with a rolling walker.
Claimant’s range of motion of the cervical spine was 35 degrees out
of 50 degrees, extension was 40 degrees out of 60 degrees, left
rotation was 40 degrees out of 80 degrees, and right rotation was
40 degrees out of 80 degrees.
The ALJ also did not
recognize the reduced range of motion of Claimant’s left shoulder
abduction which was 80 degrees out of 150 degrees in supination,
left shoulder forward elevation of 90 degrees out of 150 degrees,
and shoulder adduction of 20 degrees out of 30 degrees.
should abduction was 90 degrees out of 150 degrees, forward
elevation was 80 degrees out of 150 degrees and adduction was 20
degrees out of 30 degrees.
He also noted pain with elevation.
These findings were in conformity with the assessment on March
17, 2010 by Dr. Paul Chin. Dr. Chin noted Claimant’s left shoulder
pain and tenderness in the right shoulder joint.
ALJ also did not recognize the MRI performed July 7, 2009 which
indicated mild AC joint arthropathy, mild cystic degenerative
changes in the lateral aspect of the humeral head.
Certainly, it is well-recognized in this Circuit that an ALJ
is not required to discuss every piece of evidence.
Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).
However, he is
required to discuss uncontroverted evidence not relied upon and
significantly probative evidence that is rejected.
Id. at 1010.
uncontradicted medical opinion, taking only the parts that are
favorable to a finding of nondisability.” Haga v. Astrue, 482 F.3d
1205, 1208 (10th Cir. 2007).
By failing to acknowledge the
substantial record of Claimant’s consistent shoulder and cervical
pain requiring treatment, the ALJ fell short of his obligation to
consider the evidence which supported additional restrictions in
his ability to engage in basic work activities. On remand, the ALJ
this evidence in the formulation of the RFC.
Claimant makes the related argument that the ALJ failed to
consider the above evidence in assessing the restrictions which
should have been considered in the RFC.
The ALJ considered
Claimant’s right AC joint arthropathy to be a severe impairment at
He failed to consider the extent of the
limitations bilaterally in Claimant’s shoulders and cervical spine
in the subsequent steps, including the RFC assessment, when the
medical evidence supported significant range of motion problems
with these areas.
“[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
requirement in the regulations for a direct correspondence between
an RFC finding and a specific medical opinion on the functional
capacity in question.”
Chapo v. Astrue, 682 F.3d 1285, 1288 (10th
On remand, the ALJ should consider the effects of
Claimant’s consistent shoulder and cervical spine problems upon the
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 11th day of September, 2017.
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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