Funk v. Social Security Administration

Filing 23

OPINION AND ORDER by Magistrate Judge D. Edward Snow REVERSING and REMANDING the decision of the ALJ. (tjm, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
DWAYNE M. FUNK,
Plaintiff,
v.
MARTIN O’MALLEY, 1
Commissioner of Social Security,
Defendant.

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Case No. 22-cv-324-DES

OPINION AND ORDER
Pursuant to 42 U.S.C. § 405(g), Plaintiff Dwayne M. Funk (“Claimant”) seeks judicial
review of a final decision by the Commissioner of the Social Security Administration
(“Commissioner”) denying his claims for disability insurance benefits under Title II and
supplemental security income benefits under Title XVI of the Social Security Act (the “Act”). For
the reasons explained below, the Court REVERSES and REMANDS the Commissioner’s decision
denying benefits.
I.

Statutory Framework and Standard of Review
The Act defines “disability” as the “inability to engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A). To be deemed disabled under the Act, a claimant’s
impairment(s) must be “of such severity that he is not only unable to do his previous work but

Effective December 20, 2023, Martin O’Malley, Commissioner of Social Security, is substituted as the
defendant in this action pursuant to Fed. R. Civ. P. 25(d). No further action is necessary to continue this
suit by reason of 42 U.S.C. § 405(g).

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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. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). This process requires the Commissioner to
consider: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the
claimant suffers from a medically determinable severe impairment(s); (3) whether such
impairment meets or medically equals a listed impairment set forth in 20 C.F.R. pt. 404, subpt. P.,
app. 1; (4) whether the claimant can perform her past relevant work considering the
Commissioner’s assessment of the claimant’s residual functional capacity (“RFC”); and
(5) whether the claimant can perform other work considering the RFC and certain vocational
factors. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). The claimant bears the burden
of proof through step four, but the burden shifts to the Commissioner at step five. Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007). If it is determined, at any step of the process, that the
claimant is or is not disabled, evaluation under a subsequent step is not necessary. Williams v.
Bowen, 844 F.2d 748, 750 (10th Cir. 1988).
A district court’s review of the Commissioner’s final decision is governed by 42 U.S.C.
§ 405(g). The scope of judicial review under § 405(g) is limited to determining whether the
Commissioner applied the correct legal standards and whether the Commissioner’s factual findings
are supported by substantial evidence. See Noreja v. Soc. Sec. Comm’r, 952 F.3d 1172, 1177 (10th
Cir. 2020). Substantial evidence is more than a scintilla but means only “‘such evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Biestek v. Berryhill, 139 S.
Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). In
conducting its review, the Court “may neither reweigh the evidence nor substitute [its] judgment

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for that of the agency.” Noreja, 952 F.3d at 1178 (quotation omitted). Rather, the Court must
“meticulously examine the record as a whole, including anything that may undercut or detract from
the ALJ’s findings in order to determine if the substantiality test has been met.” Flaherty v. Astrue,
515 F.3d 1067, 1070 (10th Cir. 2007) (quotation omitted).
II.

Claimant’s Background and Procedural History
In June 2020, Claimant applied for disability insurance benefits under Title II and

supplemental security income benefits under Title XVI of the Act. (R. 265-80). Claimant alleges
he has been unable to work since an amended onset date of August 17, 2019, due to back problems,
right arm pain, and right hand pain. (R. 314, 330). Claimant was 52 years old on the date of the
ALJ’s decision and completed three years of college. (R. 21, 265, 274, 331). The ALJ found
Claimant has past relevant work as a furniture rental clerk.2 (R. 64).
Claimant’s claims for benefits were denied initially and on reconsideration, and he
requested a hearing. (R. 69-142). ALJ Michael Mannes conducted an administrative hearing and
issued a decision on May 16, 2022, finding Claimant not disabled. (R. 13-21, 27-67). The Appeals
Council denied review on September 19, 2022 (R. 1-6), rendering the Commissioner’s decision

“Past relevant work is work that [the claimant] ha[s] done within the past 15 years, that was substantial
gainful activity, and that lasted long enough for [the claimant] to learn to do it.” 20 C.F.R.
§§ 404.1560(b)(1), 416.920(b)(1). Substantial gainful activity is “work activity that involves doing
significant physical or mental activities . . . that [the claimant does] for pay or profit.” 20 C.F.R.
§§ 404.1572(a)-(b), 416.972(a)-(b). Generally, if the claimant’s work was continuous without significant
change in work patterns or earnings, the ALJ will average the claimant’s earnings over each period for
which a different substantial gainful activity earnings level applies. 20 C.F.R. §§ 404.1574a(a)-(b),
416.974a(a)-(b). If the claimant’s average monthly earnings exceed a prescribed threshold, substantial
gainful activity is presumed. 20 C.F.R. §§ 404.1574(b)(2)(ii), 416.974(b)(2)(ii). Conversely, if the
claimant’s earnings are equal to or below the threshold amount, the claimant is presumed not to be engaged
in substantial gainful activity. Claimant worked as a furniture rental clerk in 2010. Because Claimant’s
total earnings of $943.50 as a furniture rental clerk in 2010 are clearly below the substantial gainful activity
threshold of $1,000.00 per month in 2010, Claimant argues (Docket No. 13 at 11), and the Commissioner
concedes (Docket No. 20 at 14), that Claimant’s work as a furniture rental clerk does not meet the definition
of past relevant work.

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final. 20 C.F.R. §§ 404.981, 416.1481. Claimant filed this appeal on November 17, 2022.
(Docket No. 2).
III.

The ALJ’s Decision
In his decision, the ALJ found at step one that Claimant had not engaged in substantial

gainful activity since his amended onset date of August 17, 2019. (R. 15). At step two, the ALJ
found Claimant had the severe impairments of degenerative disc disease and disorders of the
muscle ligament, and fascia.

(Id.).

The ALJ further found Claimant had the non-severe

impairments of diabetes mellitus, essential hypertension, hyperlipidemia, substance addiction
disorders (drugs), obesity, and depressive, bipolar, and related disorders. (R. 16). At step three,
the ALJ found Claimant’s impairments did not meet or equal a listed impairment. (R. 17).
Before proceeding to step four, the ALJ determined Plaintiff had the RFC to perform light
work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b) with occasional climbing ramps or stairs;
never climbing ladders, ropes, or scaffolds; frequent balancing or kneeling; occasional stooping,
crouching, and crawling; frequent reaching bilaterally; and occasional handling and fingering with
the right upper extremity. (Id.). The ALJ provided a summary of the evidence that went into this
finding. (R. 17-19).
Based on the testimony of a vocational expert (“VE”), the ALJ concluded at step four that
Claimant could return to his past relevant work as a furniture rental clerk as generally performed
in the national economy. (R. 20). At step five, the ALJ also made the alternative finding that
Claimant could also perform other work existing in significant numbers in the national economy,
including public area attendant, chaperone, and counter clerk. (R. 20-21). Accordingly, the ALJ
concluded Claimant was not disabled. (R. 21).

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IV.

Issues Presented
Claimant raises the following points of error in his challenge to the Commissioner’s denial

of benefits, which the undersigned re-organizes for clarity: (1) the ALJ failed to provide a narrative
discussion that explains how the evidence supported the RFC (Docket No. 13 at 5-6); (2) the ALJ
failed to properly evaluate the medical source opinion of consultative examiner Dr. Gerald Rana
(id. at 6-8); (3) the ALJ failed to account for all of Claimant’s impairments and limitations in the
RFC (id. at 8-10); (4) the ALJ failed to conduct a proper analysis pursuant to Winfrey v. Chater,
92 F.3d 1017 (10th Cir. 1996) at step four (id. at 11-14); and (5) the ALJ failed to present a
hypothetical question to the VE that included all his limitations (id. at 5). The Court agrees the
ALJ failed to properly account for Claimant’s non-severe mental impairments in the RFC
assessment, and as a result, he failed to provide a narrative discussion that explains how the
evidence supported his conclusions.
V.

Analysis
A claimant’s RFC is his “maximum remaining ability to do sustained work activities in an

ordinary work setting” for 8 hours a day, 5 days per week despite his impairments. Social Security
Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2 (July 2, 1996). In assessing the RFC, “the ALJ
must consider the combined effect of all of the claimant’s medically determinable impairments,
whether severe or not severe.” Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013); see also 20
C.F.R. §§ 404.1545(a)(2), 416.945(a)(2) (“We will consider all of [a claimant’s] medically
determinable impairments of which we are aware, including . . . impairments that are ‘not severe’
. . . when we assess [a claimant’s] residual functional capacity.”). Additionally, the ALJ must
“include a narrative discussion describing how the evidence supports each conclusion” as to the
claimant’s wok-related limitations. SSR 96-8p at *7. The ALJ must explain the basis for the

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limitations included in the RFC assessment with citations to “specific medical facts (e.g.,
laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Id.
Apart from noting Claimant was treated for depression at Carl Albert Community Mental
Health Center in June 2021, the ALJ did not mention or consider the effects of Claimant’s mental
impairments whatsoever in the RFC analysis. (R. 18). Rather, the ALJ’s RFC discussion focused
exclusively on the impact of Claimant’s severe physical impairments on his ability to work. Thus,
the Court agrees the ALJ inadequately considered Claimant’s non-severe depressive, bipolar, and
related disorders in the RFC assessment. A clear and specific analysis of what, if any, impact
Claimant’s non-severe mental impairments had on the RFC was particularly important in this case,
because no medical source opined as to Claimant’s mental RFC, and because there is some
indication in the record that Claimant’s depression is related to his physical impairments. (R. 602)
(“Depression is increased the longer he is down . . . .”).
Moreover, the omission of a discussion regarding Claimant’s non-severe mental
impairments demonstrates that the ALJ failed to provide a narrative discussion explaining the
evidentiary basis and rationale for the RFC assessment as required by SSR 96-8p. For instance,
the ALJ did not explain, what, if any work-related limitations resulted from Claimant’s non-severe
depressive, bipolar, and related disorders.

Additionally, the ALJ omitted skill level, task,

instruction, and social limitations from the RFC determination without explaining why Claimant’s
non-severe depressive, bipolar, and related disorders did not impose any limitations. Absent a
discussion of how Claimant’s non-severe impairments were accounted for in the RFC assessment,
or an explanation why such impairments did not impose any functional limitations, the Court is
unable to “credit [the ALJ’s] conclusion with substantial evidence.” Wells, 727 F.3d at 1071.

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In sum, the ALJ erred by relying on his non-severity finding at step two “as a substitute for
a proper RFC analysis” with respect to Claimant’s non-severe mental impairments. Id. at 1065.
Accordingly, the matter will be remanded for further proceedings consistent with this Order. See
id. at 1071 (remanding for further proceedings “concerning the effect of [claimant’s] medically
determinable mental impairments on her RFC, and for further analysis at steps four and five,
including any further hearing the ALJ deems necessary”).
VI.

Conclusion
For the foregoing reasons, the Commissioner’s decision finding Claimant not disabled is

REVERSED and REMANDED for proceedings consistent with this Opinion and Order.
SO ORDERED this 27th day of March, 2024.

______________________________________
D. EDWARD SNOW
UNITED STATES MAGISTRATE JUDGE

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