Hood 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
ARTHUR D. HOOD,
NANCY A. BERRYHILL, Acting
Commissioner of Social
Case No. CIV-16-311-KEW
OPINION AND ORDER
Plaintiff Arthur D. Hood (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 58 years old at the time of the ALJ’s decision.
Claimant obtained his GED.
Claimant has worked in the past as a
semi-truck driver, security guard, jailer, and building maintenance
Claimant alleges an inability to work beginning November
28, 2013 due to limitations resulting from back, leg, neck and joint
pain, arthritis, vision problems, and anxiety.
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. Claimant’s
applications were denied initially and upon reconsideration.
Administrative Law Judge (“ALJ”) John W. Belcher in McAlester,
By decision dated February 17, 2016, the ALJ denied
Claimant’s requests for benefits.
The Appeals Council denied
review of the ALJ’s decision on June 20, 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
He determined that while Claimant suffered from severe
impairments, he did not meet a listing and retained the residual
functional capacity (“RFC”) to perform his past relevant work.
also found Claimant could perform light work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) ignoring
probative evidence related to Claimant’s medical treatment; and (2)
performing an improper credibility analysis.
Consideration of the Medical Evidence
In his decision, the ALJ found Claimant suffered from the
severe impairment of disorders of the spine (lumbar and cervical).
The ALJ determined Claimant retained the RFC to perform
light work except he restricted Claimant to no lifting or carrying
pushing/pulling limitations consistent with lifting and carrying
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.
Based on this RFC, the ALJ also found Claimant could
perform his past relevant work as a jailer, performed at the light
consultation with a vocational expert, the ALJ found Claimant could
perform the representative job of gate guard, which he found
existed in sufficient numbers in both the regional and national
economies. (Tr. 19). As a result, the ALJ determined Claimant was
not disabled from November 28, 2013 through the date of the
Claimant contends the ALJ should have considered additional
probative evidence related to Claimant’s treatment.
Claimant asserts the ALJ failed to consider the treatment and
medical findings by Dr. Randall L. Hendricks and Dr. Jean Bernard
- findings which allegedly support restrictions.
contends the ALJ ignored the portions of the records of Dr. John T.
Main which supported a finding of further disability.
On examination, Dr. Hendricks found on October 22, 2014 that
Claimant experienced restricted motion in his back with some
tenderness to palpation, but not severe.
26, 2014, Dr. Hendricks noted Claimant had some tenderness over the
screw heads at S1 bilaterally after a lumbar fusion which produced
Claimant’s low back pain. He also found that Claimant’s MRI showed
that at L3-L4 and L4-L5 his discs “look like a teenager almost.”
On January 6, 2015, Dr. Hendricks performed a hardware
block under fluroscopy at the four screw heads. Claimant tolerated
the procedure well.
Claimant reported that the
procedure dramatically improved his pain for two days then it
slowly came back again.
Dr. Hendricks believed Claimant was a
candidate for removal of his hardware and exploring his fusion.
Due to side effects with other narcotic pain medication, Dr.
Hendricks placed Claimant on non-narcotic Ultram.
extremely doubtful that the removal of his hardware would provide
him with any relief whatsoever.
Dr. Bernard found Claimant suffered from severe pain bilateral
sacroiliac joint injections.
After the procedure,
Claimant was able to ambulate without difficulty and his pain
On May 20, 2015, Dr. Bernard noted that
Claimant experienced pain at the lumbar paraspinal and lumbar face
prescribed Lyrica for the condition. (Tr. 272). On June 12, 2015,
performed lumbar epidural steroid injections in June and August of
(Tr. 273, 275).
On September 17, 2015, Claimant reported
severe pain upon palpation at the S1 joint on the right.
Bernard treated him with a steroid injection in the joint and
continued prescription of Conzip and Lyrica.
November 13, 2015, Dr. Bernard wrote that palpation of Claimant’s
S1 joint revealed moderate pain on both sides.
Prednisone and Neurontin.
On December 16, 2015,
paraspinals and lumbar facet joints.
Dr. Bernard treated Claimant
with an epidural steroid injection.
acknowledge any of this evidence in his decision.
The ALJ did not
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 lumbar 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.
In a similar vein, the ALJ failed to consider the above
evidence in assessing the substantiation for Claimant’s subjective
Namely, the ALJ noted Claimant’s statements that he
could not sit or stand for long periods or lift and do physical
activities because, in part, of his chronic pain in the lower back.
Although the ALJ did not discount all of Claimant’s
complaints, he found the medical evidence did not support his
subjective statements and associated restrictions.
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.
Factors to be considered in assessing a claimant’s credibility
include (1) the individual’s daily activities; (2) the location,
duration, frequency, and intensity of the individual’s pain or
other symptoms; (3) factors that precipitate and aggravate the
symptoms; (4) the type, dosage, effectiveness, and side effects of
any medication the individual takes or has taken to alleviate pain
or other symptoms; (5) treatment, other than medication, the
individual receives or has received for relief of pain or other
symptoms; (6) any measures other than treatment the individual uses
or has used to relieve pain or other symptoms (e.g., lying flat on
his or her back, standing for 15 to 20 minutes every hour, or
sleeping on a board); and (7) any other factors concerning the
individual's functional limitations and restrictions due to pain or
Soc. Sec. R. 96-7p; 1996 WL 374186, 3.
cannot satisfy his obligation to gauge a claimant’s credibility by
merely making conclusory findings and must give reasons for the
determination based upon specific evidence.
Kepler, 68 F.3d at
He certainly cannot meet his obligation by failing to
Additionally, 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). The ALJ shall apply the new guidelines under
Soc. Sec. R. 16-3p in evaluating Claimant’s testimony regarding
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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