McGuire v. Social Security Administration

Filing 23

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,

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

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.

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 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

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problems, and insomnia.
Procedural History
On

November

14,

2012,

Claimant

protectively

filed

for

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.

Claimant’s

applications were denied initially and upon reconsideration.

July

15,

2014,

Administrative
Oklahoma.

an

Law

administrative
Judge

(“ALJ”)

hearing

James

was

Bentley

held
in

On

before

McAlester,

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.
of

the

ALJ

represents

the

purposes of further appeal.

As a result, the decision

Commissioner’s

final

decision

for

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
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 a range of sedentary work
with limitations.

Errors Alleged for Review

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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
impairments.

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.

(Tr. 14).

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.

(Tr. 16).

After consultation with a vocational expert, the ALJ found
Claimant

could

perform

the

representative

jobs

of

document

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.
Id.

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Claimant contends the ALJ ignored probative medical evidence
related to her shoulder and cervical spine impairments.

Claimant

specifically contends the ALJ failed to account for Dr. Jack
Howard’s consultative examination findings.
Claimant on June 28, 2013.
that

Claimant

shoulder.

experienced

Dr. Howard examined

Among his findings, Dr. Howard stated
pain

with

elevation

of

the

right

She demonstrated a slow gait with decreased balance.

Heel to toe walking was accomplished with a rolling walker.

(Tr.

365).

that

The

ALJ

did

not

reference

Dr.

Howard’s

finding

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.

(Tr. 369).

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.

Her right

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.

(Tr. 367).
These findings were in conformity with the assessment on March

6

17, 2010 by Dr. Paul Chin. Dr. Chin noted Claimant’s left shoulder
pain and tenderness in the right shoulder joint.

(Tr. 330).

The

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.

(Tr. 283).

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).

Clifton v.

However, he is

required to discuss uncontroverted evidence not relied upon and
significantly probative evidence that is rejected.
An

ALJ

“is

not

entitled

to

pick

and

choose

Id. at 1010.
through

an

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
shall consider

this evidence in the formulation of the RFC.
RFC Determination

Claimant makes the related argument that the ALJ failed to
consider the above evidence in assessing the restrictions which

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should have been considered in the RFC.

The ALJ considered

Claimant’s right AC joint arthropathy to be a severe impairment at
step two.

(Tr. 14).

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.

The ALJ

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.”

Id.

However,

there

is

“no

requirement in the regulations for a direct correspondence between

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an RFC finding and a specific medical opinion on the functional
capacity in question.”
Cir. 2012).

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
RFC.
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.

IT IS SO ORDERED this 11th day of September, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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