Spencer vs Social Security Administration

Filing 18

OPINION AND ORDER by Magistrate Judge T Lane Wilson , remanding case (terminates case) (crp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
KIMBERLY D. SPENCER,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner
of the Social Security Administration,
Defendant.

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Case No. 13-cv-276-TLW

OPINION AND ORDER
Plaintiff Kimberly D. Spencer seeks judicial review of the decision of the Commissioner
of the Social Security Administration denying her claim for supplemental security income
benefits under Titles II and XVI of the Social Security Act (“SSA”), 42 U.S.C. §§ 416(i), 423,
and 1382c(a)(3). In accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to
proceed before a United States Magistrate Judge. (Dkt. 6). Any appeal of this decision will be
directly to the Tenth Circuit Court of Appeals.
Introduction
In reviewing a decision of the Commissioner, the Court is limited to determining whether
the Commissioner has applied the correct legal standards and whether the decision is supported
by substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).
Substantial evidence is more than a scintilla but less than a preponderance and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. See id. The
Court’s review is based on the record, and the Court will “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.” Id. The Court may neither re-weigh the

evidence nor substitute its judgment for that of the Commissioner. See Hackett v. Barnhart, 395
F.3d 1168, 1172 (10th Cir. 2005). Even if the Court might have reached a different conclusion, if
supported by substantial evidence, the Commissioner’s decision stands. See White v. Barnhart,
287 F.3d 903, 908 (10th Cir. 2002).
Background
Plaintiff, then a 36-year old female, applied for Titles II and XVI benefits on March 25,
2010. (R. 26). Plaintiff alleged a disability onset date of October 5, 2007. Id. Plaintiff claimed
that she was unable to work due to major depressive disorder, anxiety, tendonitis, chronic pain
(fibromyalgia), chronic bronchitis, chronic PTSD, and migraines. (R. 134). Plaintiff’s claims for
benefits were denied initially on May 11, 2010, and on reconsideration on December 14, 2010.
(R. 59-67; 73-8). Plaintiff then requested a hearing before an administrative law judge (“ALJ”).
(R. 79). The ALJ held the hearing on November 10, 2011. (R. 23-54). The ALJ issued a decision
on April 20, 2012, denying benefits and finding plaintiff not disabled because there were jobs
that she could perform given her age, education, work experience, and residual functional
capacity (“RFC”). (R. 21-2). The Appeals Council denied review, and plaintiff appealed. (R. 15); (Dkt. 2).
The ALJ’s Decision
The ALJ found that plaintiff had not performed any substantial gainful activity since her
alleged disability onset date of October 5, 2007. (R. 12). The ALJ found that plaintiff had the
severe impairments of arthralgia and myalgia, bronchitis, migraines, carpal tunnel syndrome,
fibromyalgia, tarsal tunnel syndrome, bipolar disorder, and anxiety disorder. Id. Under the
“paragraph B” criteria, plaintiff had moderate restrictions in activities of daily living, social
functioning, and concentration, persistence, and pace, and no episodes of decompensation. (R.

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13-14). The ALJ found that plaintiff’s impairments did not meet or medically equal a listed
impairment under 20 C.F.R. Part 404, Sub Part P, Appendix 1. (R. 14).
After reviewing plaintiff’s testimony, the medical evidence, and other evidence in the
record, the ALJ concluded that plaintiff could perform:
a reduced range of light work as defined in 20 CFR 404.1567(b) and 416.967(b).
The claimant can lift 10 pounds frequently and 20 pounds occasionally. She can
stand and walk a total of 6 hours in an 8-hour workdays [sic] and sit 6 hours in an
8-hour workday. She can frequently, but not constantly, handle and finger. She
can have superficial and incidental interaction with coworkers and supervisors,
with no significant interaction with the public. She is limited to simple routine
tasks.
Id. The ALJ then found that plaintiff is unable to perform any of her past relevant work. (R. 20).
However, the ALJ cited other jobs that the vocational expert determined that plaintiff could
perform, such as housekeeper (light, SVP 2), merchandise marker (light, SVP 2), and routing
clerk (light, SVP 2). Accordingly, the ALJ found that plaintiff was not disabled. (R. 21).
ANALYSIS
On appeal, plaintiff raises two issues: (1) that the ALJ failed to properly evaluate her
treating physician’s opinion, and (2) that the ALJ’s RFC determination is flawed. (Dkt. 16). Of
these issues, plaintiff’s challenge to the ALJ’s RFC determination is dispositive.1
At step two, the ALJ must determine whether the claimant has an “impairment or
combination of impairments which significantly limits [her] ... ability to do basic work
activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). Such impairments are referred to as “severe.”
Id. This step requires only a de minimis showing of impairment. See Hawkins v. Chater, 113
F.3d 1162, 1169 (10th Cir. 1997) (citing Williams v. Bowen, 844 F.2d 748, 751 (10th Cir.
1988)). The ALJ found that plaintiff has a number of severe impairments, including migraines
and bronchitis. (R. 12).

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The Court finds no error with respect to plaintiff’s issue with the treating physician’s opinion.
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At step four, the ALJ must determine plaintiff’s RFC, which reflects the most a claimant
can do despite any impairments. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); SSR 96-8p.
The RFC findings “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).” SSR 96-8p. As part of this narrative, the ALJ
must consider all of a claimant’s medically determinable functional impairments, whether or not
they are severe. See 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). The Tenth Circuit has held that
“failure to consider all of the impairments is reversible error.” Salazar v. Barnhart, 468 F.3d 615,
621 (10th Cir. 2006). The question in this case is whether the ALJ failed to address plaintiff’s
severe impairments of migraines and bronchitis and, if so, whether either impairment could
impose a functional impairment that impacts plaintiff’s ability to work.
When formulating a claimant’s RFC, the ALJ is required to “consider the combined
effect of all medically determinable impairments, whether severe or not.” Wells v. Colvin, 727
F.3d 1061, 1069 (10th Cir. 2013); 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). In this case, the
ALJ failed to incorporate any limitation for plaintiff’s severe impairments of migraines or
bronchitis, and she failed to explain why neither poses a limitation.
The ALJ’s discussion of plaintiff’s migraines is limited to noting that on July 22, 2011,
plaintiff reported that her migraines had decreased in frequency and intensity. (R. 16). The ALJ
also cited Dr. Van Tuyl’s records, in which he states that claimant is being treated for her
migraines in addition to depression, anxiety, chronic pain, PTSD, and “borderline symptoms,”
that her medications seemed to be effective in treating “most” of her symptoms (without specific
reference to which symptoms or impairments), but that plaintiff was unable to work due to
anxiety and chronic pain. (R. 19). The reference to plaintiff’s “anxiety” and “chronic pain” is
clearly not a reference to her migraines. The ALJ did not include any limitation in plaintiff’s
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RFC that could relate to plaintiff’s migraines. (R. 14-20). However, the ALJ explained that
plaintiff’s migraines had decreased in frequency and intensity, and he cited Dr. Van Tuyl’s
records, which indicate that most of plaintiff’s symptoms were being treated effectively with
medication and that plaintiff’s inability to work (an issue reserved to the Commissioner in any
event) was mainly due to symptoms unrelated to the migraines.
As to plaintiff’s bronchitis, the ALJ’s decision mentions only once that plaintiff was
“followed for chronic bronchitis” by Stephen Barnes, D.O., and mentions only once plaintiff’s
testimony regarding bronchitis “flares several times a year for 2 weeks to 2 months in duration.”
(R. 15). The decision then falls silent regarding any functional limitation for this impairment,
which the ALJ found to be severe, or any explanation as to why the impairment does not impose
any functional limitation. 2
The ALJ is required to state the reason that an impairment is not included in the RFC,
unless the ALJ’s reasoning is clear from the decision itself. See Wells, 727 F.3d at 1069; 20
C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). As to plaintiff’s migraines, the ALJ’s reasoning is
clear. He relied on Dr. Van Tuyl’s medical records and opinion, which provide substantial
evidence in support of a finding that the migraines do not impose any functional limitation on
plaintiff’s ability to work. However, the ALJ’s reasoning is not as clear with regard to plaintiff’s
bronchitis. Although the evidence that plaintiff’s bronchitis imposes a functional limitation is
minimal, it remains true that the ALJ found the impairment to be severe. More importantly, the
Court cannot follow the ALJ’s reasoning for not including a limitation regarding plaintiff’s
bronchitis in the decision, and although the Court could easily supply such reasoning, doing so

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The record reflects scant evidence of treatment for bronchitis; however, the Court is not
allowed to substitute its reasoning for that of the Commissioner. See Hackett, 395 F.3d at 1172.
The ALJ found bronchitis to be a severe impairment, and the omission of any further discussion
must be remanded to the Commissioner for reconsideration.  
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would go beyond the Court’s authority. Therefore, this portion of the ALJ’s decision is reversed
and remanded so that the ALJ can supply the reasoning for not including a limitation in
plaintiff’s RFC for her bronchitis or for the ALJ to include such a limitation and then reevaluate
whether there is work that plaintiff can perform in light of the revised RFC.
CONCLUSION
For the reasons stated above, the decision of the Commissioner is REVERSED AND
REMANDED for further proceedings related to plaintiff’s severe impairment of bronchitis as set
forth herein.
SO ORDERED this 15th day of December, 2014.

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