Campbell v. Social Security Administration

Filing 20

OPINION AND ORDER by Magistrate Judge Steven P. Shreder reversing and remanding the decision of the ALJ. (rak, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
TRACY CAMPBELL,
Plaintiff,
v.
KILOLO KIJAKAZI,
Acting Commissioner of the Social
Security Administration,1
Defendant.

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Case No. CIV-21-181-SPS

OPINION AND ORDER
The claimant Tracy Campbell requests judicial review of a denial of benefits by the
Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g). She
appeals the Commissioner’s decision and asserts that the Administrative Law Judge
(“ALJ”) erred in determining she was not disabled. For the reasons discussed below, the
Commissioner’s decision is hereby REVERSED and the case REMANDED to the ALJ 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

1

On July 9, 2021, Kilolo Kijakazi became the Commissioner of Social Security. In accordance
with Fed. R. Civ. P. 25(d), Ms. Kijakazi is substituted for Andrew M. Saul as the Defendant in this
action.

Act “only if h[er] physical or mental impairment or impairments are of such severity that
[s]he is not only unable to do h[er] previous work but cannot, considering h[er] age,
education, and work experience, engage in any other kind of substantial gainful work which
exists in the national economy[.]” Id. § 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, 416.920.2
Section 405(g) limits the scope of judicial review of the Commissioner’s decision
to two inquiries: whether the decision was supported by substantial evidence and whether
correct legal standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th
Cir. 1997). Substantial evidence is “‘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)). See also Clifton v. Chater, 79 F.3d 1007, 1009 (10th
Cir. 1996). The Court may not reweigh the evidence or substitute its discretion for the

2

Step one requires the claimant to establish that she is not engaged in substantial gainful activity.
Step two requires the claimant to establish that she has a medically severe impairment (or
combination of impairments) that significantly limits her ability to do basic work activities. If the
claimant is engaged in substantial gainful activity, or her impairment is not medically severe,
disability benefits are denied. If she does have a medically severe impairment, it is measured at
step three against the listed impairments in 20 C.F.R. Part 404, Subpt. P, App. 1. If the claimant
has a listed (or “medically equivalent”) impairment, she is regarded as disabled and awarded
benefits without further inquiry. Otherwise, the evaluation proceeds to step four, where the
claimant must show that she lacks the residual functional capacity (“RFC”) to return to her past
relevant work. At step five, the burden shifts to the Commissioner to show there is significant
work in the national economy that the claimant can perform, given her age, education, work
experience, and RFC. Disability benefits are denied if the claimant can return to any of her past
relevant work or if her RFC does not preclude alternative work. See generally Williams v. Bowen,
844 F.2d 748, 750-51 (10th Cir. 1988).
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Commissioner’s. See Casias v. Secretary of Health & Human Services, 933 F.2d 799, 800
(10th Cir. 1991). But the Court must review the record as a whole, and “[t]he substantiality
of 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
The claimant was forty-eight years old at the time of the administrative hearing (Tr.
50-54). She completed two years of college and the ALJ made no finding as to past relevant
work (Tr. 42, 252). The claimant alleges that she has been unable to work since September
8, 2018, due to kidney disease, congestive heart failure (CHF), osteoarthritis, sleep apnea,
and neuropathy (Tr. 251).
Procedural History
On May 22, 2019, the claimant applied for disability insurance benefits under Title
II of the Social Security Act, 42 U.S.C. §§ 401-434. Her application was denied. ALJ
James Stewart conducted an administrative hearing and determined that the claimant was
not disabled in a written opinion dated December 7, 2020 (Tr. 30-44). The Appeals Council
denied review, so the ALJ’s opinion is the final decision of the Commissioner for purposes
of this appeal. See 20 C.F.R. § 404.981.
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential evaluation. At step four,
he found that the claimant had the residual functional capacity (“RFC”) to perform
sedentary work as defined in 20 C.F.R. § 404.1567(a), except that she could only
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occasionally climb ramps/stairs, crawl, balance, kneel, stoop, or crouch; frequently finger
and handle bilaterally; and never climb ladders/ropes/scaffolds. Additionally, he found she
could not drive, and that she must avoid hazards including unprotected heights and moving
machinery, as well as concentrated exposure to pulmonary irritants such as dusts, odors, or
gases (Tr. 34). The ALJ then proceeded to step five and determined that the claimant was
not disabled because there was work that she could perform in the national economy, e. g.,
circuit board assembler and document preparer (Tr. 42-44).
Review
The claimant contends3 that the ALJ: (i) failed to properly assess her RFC by failing
to include relevant limitations and to properly evaluate the consistency of her statements
in light of her symptoms, which (ii) resulted in errors at step five as to the jobs identified.
The Court agrees with the claimant’s first assertion, and the decision of the Commissioner
must therefore be reversed.
The ALJ found that the claimant had the severe impairments of congestive heart
failure, osteoarthritis, neuropathy, restrictive lung disease, sleep apnea, obesity, solitary
kidney, and kidney disease (Tr. 33). The relevant medical evidence reflects that the
claimant presented to the emergency room for numerous issues during the applicable time.
On September 6, 2018 (two days prior to the alleged onset date), the claimant presented to
the ER with complaints of increased lower extremity edema; she was medically cleared

3

The Plaintiff has failed to comply with this Court’s Loc. Civ. R. 7.1(c) regarding format and
length of brief. The Court will proceed with the arguments raised in this case, but cautions counsel
that, in the future, consideration may only be given to that portion of the brief in compliance with
this Court’s Local Rules.
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and discharged the same day (Tr. 491-493). On October 16, 2018, she presented with
complaints of chest pain, edema, and difficulty breathing, but she did have normal range
of motion (Tr. 436-437). At that time, she was assessed with questionable congestive heart
failure, as well as chronic kidney disease (due in part to congenital syndrome of one
kidney), hypertension, and morbid obesity (Tr. 456). On January 5, 2019, the claimant
presented with shortness of breath and eight pounds of weight gain with peripheral edema
(Tr. 610). Her discharge diagnoses the following day included acute on chronic diastolic
CHF exacerbation, chronic kidney disease, hypertension, and GERD (Tr. 609-610). The
following month, on February 5, 2019, the claimant complained of an eight-pound weight
gain, peripheral edema, increased shortness of breath, weakness, and fatigue (Tr. 1082).
She was stabilized and sent home (Tr. 1082). She presented with shortness of breath on
March 5, 2019 and was diagnosed with bronchitis (Tr. 522-523). On July 14, 2019, the
claimant had no signs of acute CHF, but was mildly hypertensive and had peripheral edema
(Tr. 630). The claimant returned to the hospital on July 17, 2019, with increased pedal
edema and shortness of breath (Tr. 636-637). On August 5, 2019, the claimant returned
with complaints of pedal edema but no shortness of breath, and hospital notes reflect it was
considered “fairly chronic” at that point (Tr. 651). She again presented with shortness of
breath and peripheral edema on August 14, 2019 (Tr. 668-671).
A complete retroperitoneal (renal) ultrasound revealed the claimant had a right
pelvic kidney, and no left kidney (Tr. 482). A CT scan of the thorax conducted on January
16, 2019 revealed a right lower lobe noncalcified pulmonary nodule, and follow up within
a year was recommended to assess stability (Tr. 478).
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On September 10, 2019, the claimant presented to the hospital following a fall, and
was assessed with a sprain of the left knee and pedal edema (Tr. 687-688). She received
an x-ray of the knee on September 24, 2019, which showed mild osteoarthritic changes,
primarily in the medial joint compartment, but not fracture or dislocation (Tr. 767). In late
2019, the claimant underwent a number of sessions of physical therapy but made no
significant improvement during that time (Tr. 830). Discharge notes indicate that she
continued to have pain and weakness in her bilateral lower extremities, but that she
requested to discharge and only continue with the pain clinic for injections (Tr. 829-830).
The assessment upon discharge was that the claimant was stable, but had balance deficits,
decreased knowledge of her condition, endurance deficits, pain limiting her function, and
both range of motion and strength deficits (Tr. 829). An MRI of the left knee conducted
on June 10, 2020 revealed a Grade I MCL sprain, as well as tricompartmental osteoarthritis,
most significant in the patellofemoral compartment with grade IV chondromalacia of the
lateral patellar facet and subchondral marrow edema along with small joint effusion (Tr.
881).
In January 2020, the claimant was hospitalized for nearly two weeks, during which
time she underwent a heart catheter and gallbladder removal (Tr. 824). On July 13, 2020,
the claimant presented to the ER and was assessed with a lumbar strain after pain for over
a week, combined with her chronic left knee problems (Tr. 818-820).
In addition to ER visits, the claimant frequently complained of edema at
appointments with treating physicians (Tr. 815). The claimant was positive for joint pain
and swelling at a routine appointment on September 23, 2018 (Tr. 964). Nephrology
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treatment notes from October 2018 reflect the claimant was positive for joint pain, cramps,
and swelling (Tr. 915). However, she had no joint pain or decreased range of motion at an
appointment on November 26, 2019 to address her CHF diagnosis (Tr. 1134). On January
13, 2020, the claimant was noted to have newly-diminished ejection fraction (Tr. 1161).
She was assessed with joint pain, cramps, and swelling on February 17, 2020 (Tr. 1016).
She was sent to the Northeast Oklahoma Heart Center on February 10, 2020, and assessed
with cardiomyopathy, at which time she was noted to have shortness of breath (Tr. 12151216). Both an echocardiogram and pulmonary function test were abnormal, showing
moderate to severe interstitial disease and mild diffusion (Tr. 1221, 1243, 1390). The
claimant again reported continued shortness of breath and pedal edema on April 1 and 8,
2020 (Tr. 1243, 1266-1267). An April 22, 2020 treatment note reflects the claimant
continued to have leg swelling, and that “[s]he does not appear to be that mobile at home”
(Tr. 1316). She was still swollen on May 5, 2020, at which time she was assessed with
diastolic CHF (Tr. 1351-1352). On August 6, 2020, the claimant was treated at Tahlequah
Medical Group for follow up of her pulmonary nodule and dyspnea (Tr. 897). Treatment
notes indicate that the claimant had an unstable gait due to degenerative joint disease, and
that she limped. The claimant attempted a six-minute walk but lasted only ten to fifteen
seconds (Tr. 897, 1440-1441). She was noted to have severe degenerative joint disease
primarily involving her knee joints (Tr. 1440). She was assessed with dyspnea on exertion,
restrictive lung disease secondary to obesity, physical deconditioning, pulmonary nodule,
sleep apnea, and morbid obesity (Tr. 898, 1441). On September 17, 2020, treatment notes
reflect that the claimant reported continued shortness of breath and edema (Tr. 1380). On
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September 19, 2020, the claimant noted “fluid overload” as well as difficulty with mobility
(Tr. 815).
The record reflects that the claimant had a BMI over 50, with weight ranging from
286 to 321 pounds (Tr. 439, 984, 1016). A sleep study conducted on September 10, 2020
revealed that the claimant had mild obstructive sleep apnea and comorbid sleep-related
hypoventilation (Tr. 1123).
The record contained no consultative exams of the claimant. State reviewing
physicians determined initially and upon review that the claimant could perform light work
with no additional limitations (Tr. 128-129, 150-151). The reconsideration was completed
on December 3, 2019 (Tr. 151).
At the administrative hearing, the claimant testified that she had to begin working
fifteen to twenty hours per week because she lived alone and had no outside financial
support (Tr. 58-59).

She further testified that she experiences daily problems with

swelling, mostly in her feet and legs, despite taking medication for it, and that it is
particularly around her left knee following a fall (Tr. 60-62). She estimated she could lift
about a gallon of milk, stand five minutes before needing to sit, and that she still has
swelling in her legs when she is seated (Tr. 63). As to daily activities, she stated that she
does not have “issues,” but that tasks such was washing dishes take her a long time because
she takes frequent breaks (Tr. 64).
The claimant submitted additional records to the Appeals Council. They indicate,
inter alia, that the claimant continued to complain of left knee pain following injections
that provided no pain relief (Tr. 20-21). Her range of motion was painful and guarded, and
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she ambulated antalgically (Tr. 21). She was prescribed a walker, and weight loss was also
recommended (Tr. 21). Due to her comorbidities, particularly her morbid obesity, she was
not considered a good candidate for surgery (Tr. 21).
In his written opinion at step four, the ALJ summarized the claimant’s hearing
testimony as well as much of the evidence in the record beginning in August 2018 (Tr. 42).
In particular, the ALJ noted the claimant’s discharge from physical therapy, including her
left knee flexion improvement, as well as continued pain and weakness in the bilateral
lower extremities, but made no mention of her deficits of balance, endurance, strength, and
range of motion (Tr. 39, 829). He did note the pulmonology exam where the claimant
lasted only ten to fifteen seconds of the six-minute walk and that she had exertional
dyspnea, but pointed out that her saturation was 97% at rest (Tr. 40-41). The ALJ found
the claimant’s statements not consistent with the evidence because: (i) she was able to live
alone and meet her needs without assistance, (ii) she worked fifteen to twenty hours per
week, (iii) a November 2018 treatment note showed a normal range of motion, (iv) an
August 2020 record showed only trace edema (Tr. 1044), (v) her kidney function was
stable, (vi) her ejection fraction had stabilized, and (vii) her oxygen saturation was 98%
despite continued complaints of shortness of breath (Tr. 35). The ALJ then stated that the
claimant could, inter alia, occasionally climb stairs/ramps, crawl, balance, kneel, stoop, or
crouch because her range of motion and strength testing was “generally within normal
limits,” and that he restricted the claimant from pulmonary irritants due to her restrictive
lung disease, and to only frequent handling and fingering due to neuropathy, but dismissed
her “pain problems” because they were due to her morbid obesity (Tr. 41-42). He then
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found the state reviewing physician opinions not persuasive in light of the longitudinal
evidence and because they did not examine the claimant (Tr. 42). He ultimately concluded
that there was work the claimant could perform at step five and she was therefore not
disabled (Tr. 42-44).
The claimant argues that the ALJ improperly evaluated her RFC and the Court
agrees. “The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e. g., laboratory findings)
and nonmedical evidence (e. g., daily activities, observations).” Soc. Sec. Rul. 96-8p, 1996
WL 374184, at *7 (July 2, 1996). “When the ALJ has failed to comply with SSR 96-8p
because he has not linked his RFC determination with specific evidence in the record, the
court cannot adequately assess whether relevant evidence supports the ALJ’s RFC
determination.” Jagodzinski v. Colvin, 2013 WL 4849101, at *2 (D. Kan. Sept. 11, 2013)
(citing Brown v. Commissioner of the Social Security Administration, 245 F. Supp. 2d
1175, 1187 (D. Kan. 2003)). In this case, although the ALJ discussed the evidence related
to the claimant's physical impairments throughout the evaluation, he focused only on
records that supported his conclusions while ignoring consistent records from treating,
consultative, and reviewing physicians which supported additional limitations, particularly
regarding her balance, joint pain and swelling, and range of motion. See Briggs ex rel.
Briggs v. Massanari, 248 F.3d 1235, 1239 (10th Cir. 2001) (“Although the ALJ need not
discuss all of the evidence in the record, he may not ignore evidence that does not support
his decision, especially when that evidence is ‘significantly probative.’”) [citation omitted].
See also Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir.1996) (“[I]n addition to discussing
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the evidence supporting his decision, the ALJ also must discuss the uncontroverted
evidence he chooses not to rely upon, as well as significantly probative evidence that he
rejects.”) [citation omitted]. For example, the ALJ recited her numerous hospitalizations
for swelling, pain, and shortness of breath, but found she had a normal range of motion
despite her BMI. However, both her discharge notes from physical therapy and treatment
notes in 2020 made repeated mention of the claimant’s range of motion deficits and
gait/walking problems. Additionally, the ALJ failed to cite to any evidence in the record
to support his RFC findings that her shortness of breath was accounted for only by avoiding
pulmonary irritants and not also in relation to exertional difficulties. The ALJ has thus
failed to point to medical evidence demonstrating how he accounted for her impairments
in the RFC, or how he accounted for the combined effects of her impairments. See Hill v.
Astrue, 289 Fed. Appx. 289, 292 (10th Cir. 2008) (“Once the ALJ finds that the claimant
has any severe impairment, he has satisfied the analysis for purposes of step two. His
failure to find that additional alleged impairments are also severe is not in itself cause for
reversal. But this does not mean the omitted impairment simply disappears from his
analysis. In determining the claimant’s RFC, the ALJ is required to consider the effect of
all of the claimant’s medically determinable impairments, both those he deems ‘severe’
and those ‘not severe.’”) [emphasis in original] [citations omitted].
Finally, the ALJ entirely failed to mention, much less consider the “cumulative
effect of claimant’s impairments,” at step four. Langley v. Barnhart, 373 F.3d 1116, 1123
(10th Cir. 2004). See also Hamby v. Astrue, 260 Fed. Appx. 108, 112 (10th Cir. 2008) (“In
deciding Ms. Hamby’s case, the ALJ concluded that she had many severe impairments at
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step two. He failed to consider the consequences of these impairments, however, in
determining that Ms. Hamby had the RFC to perform a wide range of sedentary work.”)
[unpublished opinion]. This is particularly important here, where the claimant’s morbid
obesity appeared to have additional limiting effects on her impairments including
osteoarthritis, sleep apnea, and lung disease.

Indeed, the ALJ “must consider any

additional and cumulative effects of obesity” when assessing an individual’s RFC. 20
C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A, 1.00 Musculoskeletal System, Q. Here, the ALJ
ignored any evidence in the record as to the claimant’s obesity, much less how the
claimant’s obesity and co-existing impairments actually affected the RFC. See, e. g.,
Fleetwood v. Barnhart, 211 Fed. Appx. 736, 741-42 (10th Cir. 2007) (noting that “obesity
is [a] medically determinable impairment that [the] ALJ must consider in evaluating
disability; that [the] combined effect of obesity with other impairments can be greater than
effects of each single impairment considered individually; and that obesity must be
considered when assessing RFC.”) (citing Soc. Sec. Rul. 02-1p, 2002 WL 34686281, at *1,
*5-*6, *7). Cf. DeWitt v. Astrue, 381 Fed. Appx. 782, 785 (10th Cir. 2010) (“The
Commissioner argues that the ALJ adequately considered the functional impacts of
DeWitt’s obesity, given that the ALJ’s decision recognizes she is obese and ultimately
limits her to sedentary work with certain restrictions. But there is nothing in the decision
indicating how or whether her obesity influenced the ALJ in setting those restrictions.
Rather it appears that the ALJ’s RFC assessment was based on ‘assumptions about the
severity or functional effects of [DeWitt’s] obesity combined with [her] other impairments’

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– a process forbidden by SSR 02-1p.”) (citing Soc. Sec. R. 02-1p, 2002 WL 34686281, at
*6).
As a final note with the regard to the RFC assessment here, the Court finds that
reversal is sufficient for the reasons listed above, but likewise notes that a consultative
examination would have been helpful in this case despite recognizing that an ALJ has broad
latitude in deciding whether to order consultative examinations. Hawkins v. Chater, 113
F.3d 1162, 1166-67 (10th Cir. 1997) (Once the claimant has presented evidence suggestive
of a severe impairment, it “becomes the responsibility of the ALJ to order a consultative
evaluation if such an examination is necessary or helpful to resolve the issue of
impairment.”) (citing Diaz v. Secretary of Health & Human Services, 898 F.2d 774, 778
(10th Cir. 1990)). See also Fleetwood v. Barnhart, 211 Fed. Appx. 736, 740-741 (10th
Cir. 2007) (“The ALJ’s inability to make proper RFC findings may have sprung from his
failure to develop a sufficient record on which those findings could be based. The ALJ
must make every reasonable effort to ensure that the file contains sufficient evidence to
assess RFC.”) (quotations omitted). Although an ALJ does not generally have a duty to
order a consultative examination unless requested by counsel or the need is clearly
established in the record, see Hawkins, 113 F.3d at 1168, the Court points out that such an
examination would have been helpful in this case to clarify the extent of the claimant’s
physical impairments along with more specific effects on her functional limitations and
mobility, particularly when all her impairments were considered in combination.

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Next, the Court turns to the ALJ’s assessment of the claimant’s subjective
complaints. The Commissioner uses a two-step process to evaluate a claimant’s subjective
statements of pain or other symptoms:
First, we must consider whether there is an underlying medically
determinable physical or mental impairment(s) that could reasonably be
expected to produce an individual's symptoms, such as pain. Second . . . we
evaluate the intensity and persistence of those symptoms to determine the
extent to which the symptoms limit an individual's ability to perform workrelated activities . . .
Soc. Sec. Rul. 16-3p, 2017 WL 5180304, at *3 (October 25, 2017).4 Tenth Circuit
precedent is in alignment with the Commissioner’s regulations but characterizes the
evaluation as a three-part test. See e. g., Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166-67
(10th Cir. 2012) (citing Luna v. Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987)).5 As part
of the symptom analysis, the ALJ should consider the factors set forth in 20 C.F.R.
§§ 404.1529(c)(3), 416.929(c)(3), including: (i) daily activities; (ii) the location, duration,
frequency, and intensity of pain or other symptoms; (iii) precipitating and aggravating
factors; (iv) the type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken; (v) treatment for pain relief aside from medication; (vi) any

4

SSR 16-3p is applicable for decisions on or after March 28, 2016, and superseded SSR 96-7p,
1996 WL 374186 (July 2, 1996). See SSR 16-3p, 2017 WL 5180304, at *1. SSR 16-3p eliminated
the use of the term “credibility” to clarify that subjective symptom evaluation is not an examination
of [a claimant’s] character.” Id. at *2.
5
Analyses under SSR 16-3p and Luna are substantially similar and require the ALJ to consider
the degree to which a claimant’s subjective symptoms are consistent with the evidence. See, e. g.,
Paulek v. Colvin, 662 Fed. Appx. 588, 593-4 (10th Cir. 2016) (finding SSR 16-3p “comports” with
Luna) and Brownrigg v. Berryhill, 688 Fed. Appx. 542, 545-46 (10th Cir. 2017) (finding the factors
to consider in evaluating intensity, persistence, and limiting effects of a claimant’s symptoms in
16-3p are similar to those set forth in Luna). The undersigned Magistrate Judge agrees that Tenth
Circuit credibility analysis decisions remain precedential in symptom analyses pursuant to SSR
16-3p.
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other measures the claimant uses or has used to relieve pain or other symptoms; and
(vii) any other factors concerning functional limitations. See Soc. Sec. Rul. 16-3p, 2017
WL 5180304, at *7-8. An ALJ’s symptom evaluation is entitled to deference unless the
Court finds that the ALJ misread the medical evidence as a whole. See Casias, 933 F.2d
at 801. An ALJ’s findings regarding a claimant’s symptoms “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 is not required to perform a “formalistic factor-by-factor recitation of the evidence[,]”
Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000), but simply “recit[ing] the factors”
is insufficient. See Soc. Sec. Rul. 16–3p, 2017 WL 5180304 at *10.
The claimant contends, inter alia, that the ALJ failed to properly consider the factors
set forth above when evaluating her subjective statements. The Court agrees. Here, the
ALJ examined the evidence of record and outlined the appropriate process for evaluating
the claimant’s pain and other symptoms in his decision, and even provided several reasons
for his findings. But importantly, the reasons given by the ALJ for finding the claimant’s
subjective complaints were not consistent with the medical and other evidence and are not
entirely supported by the record. For example, the ALJ cited a November 2018 record (and
not her physical therapy record or repeated 2020 treatment notes) to conclude she had a
normal range of motion and normal strength, and only cited one August 2020 record to
conclude she only had trace edema without recognizing the repeated hospitalizations from
2018 through the close of the record which reflected chronic edema. And while the ALJ
recited much of the evidence, he failed to address where it supported the claimant’s
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testimony. A direct examination of such “perceived” inconsistencies reveals that the ALJ
only cited evidence favorable to his foregone conclusions and ignored evidence that did
not support his conclusions. See Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996)
(“[I]n addition to discussing the evidence supporting his decision, the ALJ also must
discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly
probative evidence he rejects.”) (citing Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393,
1394-95 (9th Cir. 1984)). The Court further finds that the ALJ’s error with regard to the
claimant’s subjective statements likewise had a direct effect on his assessment of the
claimant’s ultimate RFC (along with the errors described above).
Because the ALJ failed to properly analyze the evidence of record, the
Commissioner’s decision is reversed and the case remanded to the ALJ for further analysis.
If the ALJ’s subsequent analysis results in any changes to the claimant’s RFC, the ALJ
should re-determine what work the claimant can perform, if any, and ultimately whether
she is disabled.
Conclusion
In summary, the Court finds that correct legal standards were not applied by the
ALJ, and the Commissioner’s decision is therefore not supported by substantial evidence.
Accordingly, the decision of the Commissioner is hereby REVERSED, and the case is
REMANDED for further proceedings consistent with this Opinion and Order.
DATED this 1st day of August, 2022.

______________________________________
STEVEN P. SHREDER
UNITED STATES MAGISTRATE JUDGE
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