Cox v. Social Security Administration

Filing 19

OPINION AND ORDER by Magistrate Judge Kimberly E. West reversing and remanding the ruling of the Commissioner of Social Security Administration in accordance with the fourth sentence of 42:405(g). (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MARY A. COX,

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)
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)
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Plaintiff,

COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

Case No. CIV-20-011-KEW

OPINION AND ORDER
Plaintiff Mary A. Cox (the “Claimant”) requests judicial
review of the decision of the Commissioner of the Social Security
Administration (the “Commissioner”) denying her 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 she was not disabled. For the reasons discussed
below, it is the finding of this Court that the Commissioner’s
decision should be and is REVERSED and the case is REMANDED 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 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, 416.920.1
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 two inquiries: first, whether the decision was supported
by substantial evidence; and, second, whether the correct legal
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

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). 
1

2 

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 59 years old at the time of the ALJ’s decision.
She has a limited education and worked in the past as a bartender,
sales clerk, and fry cook. Claimant alleges an inability to work
beginning on October 31, 2015, due to limitations resulting from
chronic obstructive pulmonary disorder (COPD), diabetes, high
blood

pressure,

depression,

hypothyroidism,

gastroesophageal

reflux disease (GERD), sleep apnea, and right shoulder pain.
Procedural History
On

August

25,

2017,

Claimant

protectively

filed

her

applications for a period of disability and disability insurance
benefits under Title II (42 U.S.C. § 401, et seq.) of the Social
3 

Security

Act

and

for

supplemental

security

income

benefits

pursuant to Title XVI (42 U.S.C. § 1381, et seq.) of the Social
Security Act. Claimant’s applications were denied initially and
upon reconsideration. On November 13, 2018, ALJ J. Leland Bentley
conducted an administrative hearing from McAlester, Oklahoma.
Claimant was present and testified. On February 28, 2019, the ALJ
entered an unfavorable decision. Claimant requested review by the
Appeals Council, and on November 13, 2019, it denied review. 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
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 light work, with additional
limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error by (1) reaching an
improper

RFC

determination

(with

various

subparts),

and

(2)

finding she could return to her past relevant work.
RFC Assessment
In his decision, the ALJ found Claimant suffered from severe
impairments

of

diabetes

mellitus
4 

II,

right

shoulder

pain

status/post AC joint resection, COPD, hypertension, nodules on
lungs, and sleep apnea. (Tr. 61). He determined Claimant could
perform

light

work

with

additional

limitations.

She

could

occasionally reach overhead and was to avoid even moderate exposure
to dust, fumes, odors, and poorly ventilated areas. (Tr. 63).
After consultation with a vocational expert (“VE”), the ALJ
determined Claimant could return to her past relevant work as a
bartender, as generally performed. (Tr. 69). As a result, the ALJ
concluded Claimant was not under a disability from October 31, 2015,
through the date of the decision. Id.
Claimant generally argues that the ALJ’s RFC lacks analysis
or discussion and that the ALJ only summarized the evidence without
explaining how the evidence supported his conclusions. “[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
5 

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 an RFC finding and
a specific medical opinion on the functional capacity in question.”
Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012).
This Court agrees that the ALJ’s RFC assessment relies heavily
on a summary of the evidence. However, the ALJ’s presentation of
that evidence in his summary allows for the Court to sufficiently
review his RFC determination. See Hill v. Astrue, 289 Fed. Appx.
289,

293

(10th

Cir.

2008)

(“The

ALJ

provided

an

extensive

discussion of the medical record and the testimony in support of
his RFC finding. We do not require an ALJ to point to ‘specific,
affirmative, medical evidence on the record as to each requirement
of an exertional work level before [he] can determine RFC within
that category.’”), quoting Howard v. Barnhart, 379 F.3d 945, 949
(10th Cir. 2004).
Claimant next argues that the ALJ failed to fully account for
her neuropathy, fatigue, dyspnea with exertion, and right shoulder
pain, which she asserts supports a more restrictive RFC than that
determined by the ALJ. “[I]n addition to discussing the evidence
supporting

his

decision,

the

ALJ

must

also

discuss

the

uncontroverted evidence he chooses not to rely upon, as well as
significantly probative evidence he rejects.” Clifton v. Chater,
6 

79 F.3d 1007, 1010 (10th Cir. 1996) (citation omitted). He may not
“pick and choose among medical reports, using portions of evidence
favorable to his position while ignoring other evidence.” Hardman
v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004), citing Switzer v.
Heckler, 742 F.2d 382, 385-86 (7th Cir. 1984). However, “[w]hen
the ALJ does not need to reject or weigh evidence unfavorably in
order to determine a claimant’s RFC, the need for express analysis
is weakened.” Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir.
2004).
When

assessing

the

RFC,

the

ALJ

considered

Claimant’s

fatigue, neuropathy, dyspnea with exertion, and right shoulder
pain in his summary of the medical evidence. He noted Claimant
testified

her

problems.

(Tr.

diabetes,
64).

neuropathy,

Regarding

and

COPD

neuropathy,

were

the

ALJ

her

worst

referenced

several records from Claimant’s treatment providers that indicated
non-compliance

with

diabetes

treatment

and

that

Claimant’s

diabetes was uncontrolled. (Tr. 64, 65, 67, 68). He specifically
discussed Claimant’s examination in February of 2018, where she
denied burning and numbness in her feet and her examination
findings

were

unremarkable

other

than

her

moderate

obesity.

However, in April of 2018, the ALJ noted Claimant complained of
burning legs and feet, but her examination showed no remarkable
findings

other

than

obesity.

Claimant

declined

treatment

for

neuropathy, but she indicated she would start walking or do other
7 

physical

activity.

(Tr.

67).

In

September

of

2018,

Claimant

reported bilateral foot pain/burning to heels, balls of feet, and
toes for three months. Her treatment provider noted that she
suffered from diabetic peripheral neuropathy associated with type
II diabetes and that she was noncompliant with her medication
regimen. Although her muscle strength in her bilateral lower
extremities was normal, her epicritic sensation and vibratory
sensation was diminished. (Tr. 68).
The ALJ also discussed Claimant’s right shoulder pain. He
specifically discussed Claimant’s MRI of the right upper extremity
from July of 2017,which showed tendinopathy and partial-thickness
tear of the superior fibers of the subscapularis, tendinosis of
the supraspinatus with mild bursal surface fraying, and medial
subluxation of the biceps tendon secondary to subscapularis tear.
He further referenced an August of 2017 x-ray of the right shoulder
which showed mild degenerative changes to the acromioclavicular
and glenohumeral joints, and atherosclerosis. (Tr. 66). The ALJ
noted Claimant reported pain in her shoulder in February of 2018
and problems with range of motion. Upon examination, Claimant’s
right shoulder showed full external rotation and painful full
forward flexion, strength 3/5, positive empty can test, positive
impingement, and tenderness to palpation of the AC joint. (Tr. 6667). In May of 2018, Claimant reported her shoulder was doing well.
She still experienced pain, but her bilateral shoulder range of
8 

motion was within normal limits. (Tr. 67). Claimant underwent right
AC joint rotator cuff repair surgery in early July of 2018. By
mid-month, Claimant reported zero pain and that she was taking no
pain medication. (Tr. 68). At physical therapy in September of
2018, Claimant continued to rate her shoulder pain at zero. (Tr.
68).
Regarding

her

fatigue

and

dyspnea

on

exertion

the

ALJ

discussed Claimant’s treatment for sleep apnea and complaints of
dyspnea on exertion in the decision. The ALJ discussed treatment
notes from July of 2015, wherein Claimant was diagnosed with
dyspnea on exertion, and her report in September of 2015 that her
breathing was better. (Tr. 65). The ALJ discussed Claimant’s
complaints of shortness of breath in February of 2016, but with
unremarkable

examination

findings

other

than

obesity.

Id.

Regarding her sleep apnea, the ALJ referenced records wherein
Claimant requested a sleep study. By June of 2016, Claimant
reported she had sleep apnea and was using a CPAP machine. (Tr.
66).
No error is found, as the ALJ’s decision demonstrates that he
adequately considered Claimant’s fatigue, neuropathy, dyspnea with
exertion, and right shoulder pain in the RFC. The Court will not
re-weigh the evidence or substitute its judgment for that of the
Commissioner. See Casias, 933 F.2d at 800; Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007).
9 

Claimant further argues that the ALJ failed to properly
evaluate his subjective complaints. She asserts that other than
making a finding that her complains were not credible, the ALJ
provided no support for his conclusion.
Deference must be given to an ALJ’s evaluation of Claimant’s
credibility, unless there is an indication the ALJ misread the
medical evidence as a whole. See Casias, 933 F.2d at 801. Any
findings by the ALJ “should be closely and affirmatively linked to
substantial evidence and not just a conclusion in the guise of
findings.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)
(quotation omitted). The ALJ’s decision “must contain specific
reasons for the weight given to the [claimant’s] symptoms, be
consistent with and supported by the evidence, and be clearly
articulated so the [claimant] and any subsequent reviewer can
assess how the [ALJ] evaluated the [claimant’s] symptoms.” Soc.
Sec. Rul. 16-3p, 2017 WL 5180304, at *10. However, an ALJ is not
required to conduct a “formalistic factor-by-factor recitation of
the evidence[,]” but he must set forth the specific evidence upon
which he relied. Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir.
2000).
The ALJ noted the two-step process for considering Claimant’s
symptoms. He referenced certain statements by Claimant from her
disability report and function report. He also briefly summarized
her testimony from the hearing. The ALJ then concluded that
10 

although Claimant’s impairments could reasonably be expected to
cause

her

alleged

symptoms,

her

statements

“concerning

the

intensity, persistence and limiting effects of these symptoms are
not

entirely

consistent

with

the

medical

evidence

and

other

evidence in the record[.]” He indicated his reasons were explained
in the decision. (Tr. 64). The ALJ then summarized the medical
evidence and opinion evidence. (Tr. 69). However, in his discussion
of the evidence, the ALJ did not specifically identify the factors
he relied upon when considering Claimant’s symptoms or how he
applied them to the evidence. The Court cannot review the summary
of the medical evidence and perform the analysis for the ALJ. See
Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004) (“Affirming
this post hoc effort to salvage the ALJ’s decision would require
us to overstep our institutional role and usurp essential functions
committed in the first instance to the administrative process.”).
On remand, the ALJ should perform a proper evaluation of
Claimant’s symptoms. He should then reconsider Claimant’s RFC
based upon his evaluation. See Poppa v. Astrue, 569 F.3d 1167,
1171

(10th

Cir.

2009)

(“Since

the

purpose

of

the

[symptom]

evaluation is to help the ALJ access a claimant’s RFC, the ALJ’s
[symptom

evaluation]

and

RFC

determinations

intertwined.”).

11 

are

inherently

Step Four—Past Relevant Work Analysis
Claimant contends that the ALJ improperly performed the stepfour analysis required by Winfrey v. Chater, 92 F.3d 1017 (10th
Cir. 1996). She asserts the ALJ failed at all three steps of the
Winfrey analysis. Claimant also asserts that she cannot perform
her past relevant work as a bartender because it requires frequent
reaching.
Step four of the sequential analysis requires the ALJ evaluate
a claimant’s RFC, determine the physical and mental demands of a
claimant’s past relevant work, and then conclude whether a claimant
has the ability to meet the job demands of his past relevant work
using the determined RFC. Winfrey, 92 F.3d at 1023. The ALJ may
rely upon the testimony of the VE when making the determination of
the demands of a claimant’s past relevant work, but “the ALJ
himself must make the required findings on the record, including
his own evaluation of the claimant’s ability to perform his past
relevant work.”

Id. at 1025; see also Doyal v. Barnhart, 331 F.3d

758, 761 (10th Cir. 2003). Here, because the ALJ did not properly
consider Claimant’s subjective complaints, he did not meet the
first step of the Winfrey analysis, which also requires that he
reconsider the other steps of the analysis on remand.
Moreover, based upon the limitation in the RFC to “occasional
overhead

reaching,”

the

ALJ

should

also

reconsider

whether

Claimant can perform her past relevant work. A review of the
12 

listing for bartender in the Dictionary of Occupational Titles
(“DOT”), DOT # 312.474-010, states that the job requires frequent
reaching. The listing does not specify what type of reaching, and
the VE testified that her testimony was consistent with the DOT.
The ALJ did not have the VE clarify the inconsistency. See Haddock
v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999). On remand, the ALJ
should clarify with the VE any potential conflicts between the
testimony and the DOT.
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 for further proceedings consistent with the
Opinion and Order.
IT IS SO ORDERED this 31st day of March, 2021.

KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

13