Groom v. Social Security Administration

Filing 17

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
CHARLES E. GROOM,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

Case No. CIV-17-018-KEW

OPINION AND ORDER

Plaintiff Charles E. Groom (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
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

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

§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:
substantial

This Court’s review is limited to

first, whether the decision was supported by

evidence;

and,

second,

1

whether

the

correct

legal

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).

2

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.”
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 62 years old at the time of the ALJ’s latest
decision.

Claimant obtained his GED, took a few college classes,

and obtained a real estate license. Claimant has worked in the past
as a health care provider.

Claimant alleges an inability to work

beginning September 20, 2011 due to limitations resulting from back

pain, neuropathy in the legs and feet, Meniere’s disease, COPD, and
fluid on the brain.

3

Procedural History
On June 11, 2013, Claimant protectively filed for protectively

filed for disability insurance benefits under Title II (42 U.S.C.
§ 401, et seq.) of the Social Security Act.

On June 5, 2013,

Claimant filed for supplemental security income pursuant to Title
XVI (42 U.S.C. § 1381, et seq.) of the Social Security Act.
Claimant’s

applications

reconsideration.

were

denied

initially

and

upon

On August 19, 2014, the Administrative Law Judge

(“ALJ”) conducted an administrative hearing in Tulsa, Oklahoma. On
November 21, 2014, the ALJ entered an unfavorable decision.

The

Appeals Council reversed the decision and remanded the case to the
ALJ on February 27, 2015.
On remand from the Appeals Council, ALJ John W. Belcher
conducted

a

supplemental

hearing

on

June

9,

2015

in

Tulsa,

Oklahoma. On August 28, 2015, the ALJ entered a second unfavorable
decision.

The Appeals Council denied review on December 7, 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 her decision at step four of the sequential
evaluation.

He determined that while Claimant suffered from severe

4

impairments, he did not meet a listing and retained the residual
functional capacity (“RFC”) to perform his past relevant work.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) ignoring
probative

medical

evidence

related

to

Claimant’s

shoulder

impairment; (2) reaching an RFC which did not adequately address
Claimant’s bilateral shoulder impairment; and (3) failing to perform
a proper step four analysis supported by substantial evidence.
Consideration of All Probative Medical Evidence
and the RFC Determination
In his decision, the ALJ found Claimant suffered from the
severe impairments of degenerative disc disease of the lumbar and
cervical spine, degenerative joint disease and arthropathies of the
legs,

COPD,

hypertension,

and

obesity.

(Tr.

13).

The

ALJ

determined Claimant retained the RFC to perform light work except
he could only stand or walk for four hours in an eight hour workday;
sit

for

six

to

eight

hours

in

an

eight

hour

workday;

could

occasionally climb ramps and stairs, balance, stoop, kneel, crouch,
and crawl; could never climb ladders, ropes, or scaffolds; could
frequently handle and finger and feel; could tolerate occasional
exposure to extreme cold and heat, defined as below 32 degrees and
above 90 degrees Fahrenheit; occasional exposure to wetness, fumes,
odors, dusts, and gases and poor ventilation; and could have no

5

exposure to unprotected heights or hazardous or fast machinery. The
ALJ found Claimant should have a job that does not require stereo
vision, fine visual acuity or depth perception, and does not require
loud background noises.

(Tr. 16).

After consultation with a vocational expert, the ALJ determined
Claimant could perform her past relevant work as a health care
provider.

(Tr. 22).

As a result, the ALJ concluded that Claimant

was not under a disability from September 20, 2011 through the date
of the decision.

Id.

Claimant first contends the ALJ erred by failing to consider
the medical evidence pertaining to his bilateral shoulder problems.
In reference to this condition, the ALJ included in his findings
that Dr. Scott Lilly found Claimant to have “mild decreased shoulder
range of motion.”

(Tr. 18).

He also recognized Claimant’s Adult

Function Report which indicated Claimant an impairment of his
ability to reach, among other functional restrictions.
The

ALJ

also

noted

the

report

of

Dr.

Ronald

(Tr. 17).

Schatzman,

a

consultative examiner. Dr. Schatzman found Claimant had “decreased
bilateral shoulder abduction with obvious pain.”

(Tr. 19).

A complete review of the record on this issue reveals Dr. Lilly
completed a medical source statement on July 7, 2014.

He indicated

Claimant could occasionally lift up to ten pounds but not carry such
weight; could sit for one hour, stand for 30 minutes, and walk for

6

fifteen minutes at a time; could sit for four hours, stand for one
hour, and walk for 30 minutes in an eight hour workday; and uses a
cane to ambulate.

These findings were based upon findings that

Claimant suffered from chronic vertigo, degenerative disc disease,
osteoarthritis,

sciatica,

COPD,

coronary

unstable angina, and rheumatoid arthritis.

artery

disease

(Tr. 523-24).

with
With

regard to reaching, Dr. Lilly found Claimant could never reach
overhead bilaterally and could occasionally otherwise reach, handle,
finger, and feel.

He attributed these restrictions to residual

neuropathic

bilateral

pain,

upper

extremity

neuropathy

and

osteoarthritis with decreased sensation in the hands and fingers and
decreased fine motor movements.

(Tr. 525).

He could never

push/pull or operate foot controls.

Dr. Lilly also found Claimant

could not engage in postural activities and could not be subjected
to environmental adverse working conditions.

(Tr. 525-27).

In May 16, 2015, Dr. Lilly completed a second statement which
limited Claimant to occasional overhead reaching and occasional “all
other” reaching.

He attributed the restrictions to neuropathy

secondary to degenerative disc disease and osteoarthritis.

(Tr.

590).
The limitations in shoulder use set out in the medical source
statement finds support in the medical record.

In Dr. Lilly’s

treatment records from May 25, July 29, August 26, and October 26,

7

2011, he consistently found

“[m]ild decreased range of motion in

the shoulders bilaterally with decreased abduction and external
rotation.”

(Tr. 505, 508, 512, 514).

These findings were also

present in the treatment records from the period prior to the onset
date.

(Tr. 500, 503).
While the ALJ recognized the presence of restricted overhead

reaching in Dr. Lilly’s and Dr. Schatzman’s records, he failed to
address the basis for failing to include limitations for the
condition in the RFC.

The ALJ is required to consider all medical

opinions, whether they come from a treating physician or nontreating source.
2003);

20

C.F.R.

Doyle v. Barnhart, 331 F.3d 758, 764 (10th Cir.
§

416.927(c).

He

must

provide

legitimate reasons for rejecting any such opinions.

specific,

The ALJ must

also give consideration to several factors in weighing any medical
opinion. Id.; 20 C.F.R. § 416.927(d)(1)-(6). Here, the ALJ stated
he

gave

Dr.

inconsistent

Lilly’s
with

his

opinion
own

“little

weight”

because

treatment

records

which

it

was

reflected

generally normal physical examinations and showed improvement and
because Dr. Lilly’s two opinions were internally inconsistent. (Tr.
21).

The ALJ did not address limitations in reaching when Dr.

Lilly’s opinion evidence on the issue was consistently supported by
his treatment records. He did not give specific reasons for failing

8

rejecting the opinion on the bilateral shoulder impairment.

On

remand, the ALJ shall address this condition and any limitations it
might impose on Claimant in the RFC.
Step Four Determination

Claimant contends the ALJ’s step four analysis is legally
flawed.

In analyzing Claimant’s ability to engage in his past

work, the ALJ must assess three phases.

In the first phase, the

ALJ must first determine the claimant’s RFC. Winfrey v. Chater, 92
F.3d 1017, 1023 (10th Cir. 1996).

This Court has determined that

the ALJ’s RFC assessment did not adequately address Claimant’s
shoulder impairment.
In the second phase, the ALJ must determine the demands of the
claimant’s past relevant work.

Id.

In making this determination,

the ALJ may rely upon the testimony of the vocational expert.
Doyal v. Barnhart, 331 F.3d 758, 761 (10th Cir. 2003).

The third

and final phase requires an analysis as to whether the claimant has
the ability to meet the job demands found in phase two despite the
limitations found in phase one.

Winfrey, 92 F.3d at 1023.

The ALJ’s findings in the last two phases were as follows:
The claimant reported that when he cared for his brother
he mostly watched his pulse and oxygen levels, played
games with him, and fed and watered his brother’s dogs.
(Ex. B2E/4). In his hearing, he stated that he would
play cards and checkers with his brother, monitored his
brother’s oxygen and made sure that he used his saline to
9

hydrate his nose, and would fill out forms if something
happened.
The vocational expert testified that the claimant has
past work as a health care provider (DOT #354.377-014,
medium as generally performed, light as actually
performed, semiskilled at Specific Vocational Preparation
level (SVP) 3). . . .
The claimant completed a Work
History Report asserting that he worked as a health care
provider from 2001 through September 2011, which occurred
during the last fifteen years. . . .
The undersigned notes that based solely on the claimant’s
testimony, the claimant could not perform his past
relevant work.
However, as shown above, the medical
evidence of record does not support the claimant’s
alleged degree of disability and supports the above
residual functional capacity.
Upon questioning by the undersigned, the vocational
expert testified that if an individual had the claimant’s
age, education, work experience, and residual functional
capacity, such an individual could perform the claimant’s
past relevant work as a health care provider. Therefore,
the undersigned finds that the claimant could perform his
past relevant work as a health care provider, as actually
performed.
Pursuant to SSR 00-4p, the undersigned has determined
that the vocational expert’s testimony is consistent with
the information contained in the Dictionary of
Occupational Titles (DOT).
(Tr. 22).
Claimant contends these findings include a requirement for
adequate vision when the ALJ included a restriction in the RFC that
Claimant “should have a job that does not require stereo vision,
fine visual acuity or depth perception.” (Tr. 16). The vocational
10

expert found that the job most similar to the health care provider
employment identified by Claimant as his past relevant work was
that of Home Attendant as defined in the Dictionary of Occupational
Titles (“DOT”)(DOT #354.377-014).

With regard to the vision

requirements of this job, the DOT states that it requires near
acuity, occasionally, far acuity, occasionally, depth perception,
occasionally, and field of vision, occasionally. Id. As a result,
an apparent conflict exists between the testimony of the vocational
expert and the DOT.

An ALJ is responsible for investigating any

discrepancies between the vocational expert’s testimony and the
DOT.

Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999).

this

case,

the

ALJ

accepted

the

vocational

expert’s

In

blanket

representation that there was no conflict when one existed.

On

remand, the ALJ shall resolve this conflict.
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
case is REMANDED to Defendant for further proceedings consistent
with this Opinion and Order.

11

IT IS SO ORDERED this 27th day of September, 2018.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

12