Neel v. Social Security Administration

Filing 21

OPINION AND ORDER by Magistrate Judge Christine D Little reversing and, remanding case (terminates case) (tjc, Dpty Clk)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OKLAHOMA
EVELYN N.,
Plaintiff,
v.
KILOLO KIJAKAZI,
Acting Commissioner of the
Social Security Administration,1
Defendant.

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Case No. 20-CV-246-CDL

OPINION AND ORDER
Plaintiff seeks judicial review of a decision of the Commissioner of the Social
Security Administration (Commissioner) denying Social Security disability benefits. The
parties have consented to proceed before a United States Magistrate Judge in accordance
with 28 U.S.C. § 636(c)(1), (2). For the reasons set forth below, the Court reverses the
Commissioner’s decision denying benefits and remands for further proceedings.
I.

Standard of Review
The Social Security Act (the Act) provides disability insurance benefits to

qualifying individuals who have a physical or mental disability. See 42 U.S.C. § 423. The
Act defines “disability” as an “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be

1

Pursuant to Federal Rule of Civil Procedure 25(d)(1), Kilolo Kijakazi is substituted as the
defendant in this action, effective upon her appointment as Acting Commissioner of Social
Security in July 2021. No further action need be taken to continue this suit by reason of the
last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

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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.” See 42 U.S.C. § 423(d)(1)(A).
Judicial review of a Commissioner’s disability determination “‘is limited to
determining whether the Commissioner applied the correct legal standards and whether the
agency’s factual findings are supported by substantial evidence.’” Noreja v. Soc. Sec.
Comm’r, 952 F.3d 1172, 1177 (10th Cir. 2020) (citing Knight ex rel. P.K. v. Colvin, 756
F.3d 1171, 1175 (10th Cir. 2014)). “Substantial evidence is more than a mere scintilla and
is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. at 1178 (quoting Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.
2005)); see also Biestek v. Berryhill, __ U.S. __, 139 S. Ct. 1148, 1154 (2019). “Evidence
is not substantial if it is overwhelmed by other evidence in the record or constitutes mere
conclusion.” Noreja, 952 F.3d at 1178 (quoting Grogan, 399 F.3d at 1261-62).
So long as supported by substantial evidence, the agency’s factual findings are
“conclusive.” Biestek, 139 S. Ct. at 1152 (quoting 42 U.S.C. § 405(g)). Thus, the court may
not reweigh the evidence or substitute its judgment for that of the agency. Noreja, 952 F.3d
at 1178 (quoting Knight, 756 F.3d at 1175).
II.

Procedural History
Plaintiff filed an application for social security disability benefits under Title II and

Title XVI of the Social Security Act (Act), respectively, on December 14, 2017 and
February 14, 2018. Plaintiff alleged an onset date of December 22, 2016, which was later
amended to March 26, 2018. (R. 243). Plaintiff initially alleged that she became disabled
due to post-traumatic stress disorder (PTSD), anxiety, depression, and injuries to the left
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shoulder and elbow. (R. 63-64). However, later in the application process, Plaintiff alleged
that she is unable to work due to problems with her neck, her left shoulder, and obesity.
(See R. 38-39). Plaintiff was 34 years old on her amended alleged onset date. Plaintiff had
previously worked as a cashier, medical assistant, front desk clerk, customer service
representative, packing department trainer, and salesperson. (R. 41, 75).
The Commissioner denied Plaintiff’s application on initial review and on
reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge
(ALJ). The ALJ held a hearing on July 24, 2019. Testimony was given by the Plaintiff and
a Vocational Expert (VE). On August 19, 2019, the ALJ issued a decision denying
disability benefits. (R. 10). The Appeals Council affirmed the decision on April 16, 2020.
(R. 1). Accordingly, the Court has jurisdiction to review the ALJ’s August 19, 2019
decision under 42 U.S.C. § 405(g).
III.

The ALJ’s Decision
The Commissioner uses a five-step, sequential process to determine whether a

claimant is disabled and, therefore, entitled to benefits. See 20 C.F.R. § 404.1520(a)(4)(i)(v). A finding that the claimant is disabled or is not disabled at any step ends the analysis.
See id.; see also Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Williams v.
Bowen, 844 F.2d 748, 751 (10th Cir. 1988)). The claimant bears the burden on steps one
through four. Lax, 489 F.3d at 1084.
At step one, the claimant must demonstrate that he is not engaged in any substantial
gainful activity. See Lax, 489 F.3d at 1084. Here, the ALJ determined Plaintiff had not
engaged in substantial gainful activity since her amended alleged onset date of March 26,
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2018. (R. 15). The ALJ’s determination at step one is not challenged and is supported by
substantial evidence.
At step two, the claimant must establish an impairment or combination of
impairments that is severe. See Lax, 489 F.3d at 1084. A claimant who does not have a
severe impairment is not disabled. See Williams, 844 F.2d at 751. Here, the ALJ determined
that Plaintiff has severe impairments of degenerative disc disease, status post lumbar
surgery, tendinitis of the left shoulder, obesity, depression, anxiety, and PTSD. (R. 16).
Thus, the ALJ properly proceeded to step three.
At step three, the ALJ determines whether the claimant’s severe impairment or
impairments are equivalent to one that is listed in Appendix 1 of the regulation, which the
Commissioner “acknowledges are so severe as to preclude substantial gainful activity.”
Williams, 844 F.2d at 751 (internal quotation and citation omitted); see 20 C.F.R. §
404.1520(d); 20 C.F.R. Pt. 404, subpt. P, app. 1 (Listings). If the claimant has an
impairment that meets all the criteria of a Listing, the claimant is presumed to be disabled
and is entitled to benefits. Otherwise, the ALJ proceeds to step four.
Here, the ALJ found at step three that Plaintiff’s physical and mental impairments
do not meet or equal the criteria for any Listing. In reaching this conclusion, the ALJ
considered the Listings under Sections 1.00 (Musculoskeletal system) and 12.00 (Mental
disorders), as well as the criteria set forth in Social Security Ruling (SSR) 19-2p regarding
obesity. Id. With respect to Plaintiff’s mental impairments, the ALJ addressed the
“paragraph B” criteria—the four areas of mental functioning listed in the agency’s
psychiatric review technique (PRT). See 20 C.F.R., Pt. 404, Subpart P, app. 1. The ALJ
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found that Plaintiff has a mild limitation in understanding, remembering, or applying
information; and a moderate limitation in each of three other areas of functioning:
interacting with others; concentrating, persisting, or maintaining pace; and adapting or
managing oneself. Id. Because Plaintiff’s mental impairments do not cause at least two
“marked” limitations or one “extreme” limitation, the ALJ found that the paragraph B
criteria are not satisfied. (R. 16).
At step four, the claimant must show that her impairment or combination of
impairments prevents her from performing work she has performed in the past. If the
claimant can perform her previous work, she is not disabled. Step four includes three
distinct phases. See Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). The ALJ first
determines the claimant’s residual functional capacity (RFC) based on all the relevant
medical and other evidence. 20 C.F.R. § 404.1520(e). The ALJ next determines the
physical and mental demands of the claimant’s past relevant work. Winfrey, 92 F.3d at
1023 (citing 20 C.F.R. § 404.1520(e)). Finally, the ALJ determines whether the RFC from
phase one allows the claimant to meet the job demands found in phase two. Id.
Here, the ALJ determined that Plaintiff has the RFC
to perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) with additional limitations. [Plaintiff] should never climb
things such as ladders or scaffolds. She should only occasionally
stoop. She should not perform work above her shoulder level. She is
able to perform simple, repetitive tasks and should only occasionally
interact with supervisors and co-workers. She should not work with
the public.

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(R. 18). Citing the VE’s hearing testimony in response to a hypothetical reflecting these
limitations, the ALJ found that Plaintiff cannot return to her past relevant work. (R. 24-25).
Accordingly, the ALJ proceeded to step five.
If the claimant satisfies her burden at steps one through four—thus establishing a
prima facie case of disability – “the burden of proof shifts to the Commissioner at step five
to show that the claimant retains [the functional residual capacity] to perform [other] work
available in the national economy, given the claimant’s age, education, and work
experience.” Lax, 489 F.3d at 1084 (quoting Hackett v. Barnhart, 395 F.3d 1168, 1171
(10th Cir. 2005)).
Here, citing the VE’s hearing testimony, the ALJ determined that Plaintiff can
perform the requirements of the following “representative occupations”:
 Clerical Mailer, DOT # 209.587-010: sedentary; specific vocational
preparation (SVP) level 2; unskilled; with 20,000 jobs estimated nationally;
 Touch-up Screener, DOT # 726.684-010: sedentary; SVP level 2; unskilled;
with 24,000 jobs estimated nationally; and
 Suture Winder, DOT # 712.687-034: sedentary; SVP level 2; with 10,000 jobs
estimated nationally.
(R. 26). The ALJ also found that these jobs exist in significant numbers in the national
economy. Accordingly, the ALJ found Plaintiff not disabled at step five. Id.
IV.

Discussion
A.

Plaintiff’s Arguments

Plaintiff argues that the ALJ ignored both subjective statements of pain and
objective medical evidence of limitations arising from impairments involving Plaintiff’s

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neck and upper extremities. Plaintiff contends that the evidence supports additional
limitations in reaching and in moving or bending her head, which leave her unable to
perform the jobs the ALJ identified at step five.
B.

Legal Standard

In Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987), the Tenth Circuit outlined a
framework for evaluating a disability claim based on pain. See 834 F.2d at 163 (citation
omitted). The Luna framework requires the ALJ to consider “(1) whether the claimant
established a pain-producing impairment by objective medical evidence; (2) if so, whether
the impairment is reasonably expected to produce some pain of the sort alleged (what we
term a ‘loose nexus’); and (3) if so, whether considering all the evidence, both objective
and subjective, the claimant’s pain was in fact disabling.” Keyes-Zachary v. Astrue, 695
F.3d 1156, 1166-67 (10th Cir. 2012) (citing Luna, 834 F.2d at 163-64)).
Similarly, under the Commissioner’s regulations, the agency first considers
“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.”
SSR 16-3P, 2017 WL 5180304, at *2 (Oct. 25, 2017); see also 20 C.F.R. §§ 404.1529,
416.929. “Second, once [such] impairment(s) . . . is established, [the agency] evaluate[s]

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the intensity and persistence of those symptoms to determine the extent to which the
symptoms limit an individual’s ability to perform work-related activities.” See id.2
In conducting the analysis of the intensity and persistence of a claimant’s pain, the
agency will consider objective medical evidence and will also “carefully consider any other
information [claimant] may submit about [their] symptoms.” 20 C.F.R. § 404.1529(c). The
agency’s regulations further explain:
We will consider all of the evidence presented, including information about
your prior work record, your statements about your symptoms, evidence
submitted by your medical sources, and observations by our employees and
other persons. . . . Factors relevant to your symptoms, such as pain, which
we will consider include:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or
other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any
medication you take or have taken to alleviate your pain or other
symptoms;
(v) Treatment, other than medication, you receive or have received for
relief of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other
symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes
every hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and
restrictions due to pain or other symptoms.

2

While the agency describes the analysis as involving a two-step process rather than the
three considerations described in Luna and Keyes-Zachary, the regulatory policy generally
comports with the approach as outlined in the cases. See Paulek v. Colvin, 662 F. App’x
588, 593-94 (10th Cir. 2016).
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20 C.F.R. § 404.1529(c); see also Branum v. Barnhart, 385 F.3d 1268, 1273-74 (10th Cir.
2004) (quoting Hargis v. Sullivan, 945 F2d. 1482, 1489 (10th Cir. 1991)) (describing
several similar factors which should be analyzed); see also Keyes-Zachary, 695 F.3d at
1167. While a formalistic factor-by-factor recitation of the evidence is not required, the
ALJ must set forth the specific evidence he relies on in evaluating a claimant’s subjective
symptoms, and must give specific reasons for his findings that are closely linked to
substantial evidence. See White v. Massanari, 271 F3d. 1256, 1261 (10th Cir. 2001); Kepler
v. Chater, 68 F.3d 387, 390 (10th Cir. 1995).
“Credibility determinations are peculiarly the province of the finder of fact, and we
will not upset such determinations when supported by substantial evidence.” Wilson v.
Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010) (citing Diaz v. Secretary of Health & Human
Servs., 898 F.2d 774, 777 (10th Cir. 1990)). However, “[f]indings as to credibility should
be closely and affirmatively linked to substantial evidence and not just a conclusion in the
guise of findings.” Id., 602 F.3d at 1144 (citing Kepler, 68 F.3d at 391) (internal citations
and quote marks omitted).3

The agency no longer uses the term “credibility” to describe the ALJ’s analysis of
subjective symptoms. See SSR 16-3p, 2017 WL 5180304 (the Commissioner “eliminat[ed]
the use of the term ‘credibility’ from [the] sub-regulatory policy, as [the] regulations do
not use this term,” and “subjective symptom evaluation is not an examination of an
individual’s character”). However, the standard of review of the ALJ’s consistency analysis
is the same as when the agency used the term “credibility.” See, e.g., Zhu v. Commissioner,
__ F. App’x __, 2021 WL 2794533, *5, n.7 (10th Cir. Jul. 6, 2021).
3

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C.

Analysis
1.

Looking Down or Side-to-Side

As the ALJ noted, Plaintiff testified that she has “trouble looking right and left,
which makes it difficult to drive,” and that “[l]ooking down also hurts.” (R. 19). However,
the RFC determination included no limitation as to looking down or from side to side.
Plaintiff contends that the ALJ failed to properly consider her statements and medical
evidence concerning limitations in looking down or from side-to-side. Plaintiff argues that
the error requires reversal because the alternative work identified at step five would be
eliminated for an individual with her limitations.
Because the Plaintiff had medically determinable impairments that could reasonably
be expected to cause her pain, the ALJ was required at the next step to “evaluate the
intensity and persistence of those symptoms to determine the extent to which the symptoms
limit an individual’s ability to perform work-related activities.” SSR 16-3P, 2017 WL
5180304, at *2 (Oct. 25, 2017); see also 20 C.F.R. §§ 404.1529; see Luna, 834 F.2d at 16364 (last step is to determine, upon consideration of all of the evidence, whether claimant’s
pain is disabling); Keyes-Zachary, 695 F.3d at 1166-67. An ALJ must provide “specific
reasons for the weight given to the individual’s symptoms” in the decision. SSR 16-3p.
The ALJ’s findings must “be consistent with and supported by the evidence, and be clearly
articulated so the individual and any subsequent reviewer can assess how the adjudicator
evaluated the individual’s symptoms.” Id.
Upon questioning by Plaintiff’s counsel during the hearing, the VE testified that the
occupations identified in response to the operative hypothetical “are desk based jobs. So,
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the person . . . would be required to look down, . . . toward [their] hands or a work surface,
for more than two hours per day.” (R. 56). Moreover, to perform unskilled jobs of the type
consistent with Plaintiff’s RFC, an individual would need to look down “all day long[;] at
least at the frequent range.” Id. The VE confirmed that these jobs are eliminated for a
hypothetical individual who can only look right, left, and down for two hours, at most, in
an eight-hour work day. (R. 56).
Here, the ALJ related Plaintiff’s statements in his decision, but did not explain how
he considered her allegations as to pain when looking down or side-to-side. (R. 19). After
noting Plaintiff’s testimony and medical evidence in the record, the ALJ’s decision said
nothing further about her alleged pain with looking down, left, or right. However, the
record includes objective medical evidence that is consistent with the alleged additional
functional limitations. For example:
(1) on March 5, 2018, Plaintiff reported pain at her neck, shoulder, and lower back,
rating the pain as 7 to 8; and stated that she was unable to brush her hair;
(2) on March 26, 2018, Plaintiff reported that her neck pain had been aggravated by
recent injuries from domestic violence. Steven Hardage, M.D. observed limited
range of motion in the cervical spine and severe pain with radiation down her
left arm when turning to the left; diagnosed strain of neck muscle, left cervical
radiculopathy, and cervical spine pain, and recommended MRI imaging of
Plaintiff’s cervical spine;
(3) on May 7, 2018, Plaintiff reported pain in her left shoulder and elbow, and in
her cervical and lumbar spine, and reported a previous fusion with hardware at
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L4-L5 and L5-S1, which improved but did not completely resolve her pain.
General surgeon Ladd Atkins, D.O observed a reduced range of motion due to
pain in flexion of her cervical spine and lumbar spine, and tenderness to
palpation in the cervical, thoracic, and lumbar paraspinal areas. Dr. Atkins
assessed, inter alia, multi-level cervical spondylosis, cervicalgia, headaches, and
post-laminectomy of L4-L5 and L5-S1; and
(4) on May 8, 2018, another provider observed a limited range of motion in
Plaintiff’s low back, cervical spine, and left shoulder.
(See R. 19-21).
Additionally, at the reconsideration level, Plaintiff submitted recent records
concerning alleged multi-level cervical spondylosis, resulting in varying degrees of canal
and foraminal stenosis; diffuse straightening of the cervical spine; bilateral facet arthrosis;
focal mass-like thickening of the oropharynx; and bilateral enlarged lymph nodes. (R. 127).
On May 9, 2019, Plaintiff reported that her neck pain was caused by several serious motor
vehicle accidents as well as history of domestic violence. Kris Parchuri, D.O. observed
mild to moderate bilateral facet arthrosis, no significant central canal stenosis, but left
foraminal stenosis at C3-C4 and C5-C6, and multilevel cervical spondylosis, pain with
side-to-side motion, and paraspinal musculature tightness. (See R. 20-22).
The ALJ recited some of this evidence, but concluded that “the nature, scope, and
findings from medical records are not supportive of the intensity or persistence of
[Plaintiff’s] subjective allegations . . . [or] of more restrictive findings than adopted.” (R.
24). The ALJ also noted that “[s]tatements made by the examining sources, as well as
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findings made by the State agency reviewers[,] are not reflective of the limitations more
restrictive than adopted.” Id. The ALJ cited the opinion of reviewing physician James
Metcalf, M.D., who, at the reconsideration level, “determined that [Plaintiff] alleged the
new condition of multi-level cervical spondylosis, but [that] a review of the medical
evidence of record did not substantia[te] a more restricted determination” than the initial
determination for light work with postural limitations. (R. 24).
However, it is not clear whether any medical sources considered or made findings
on all potential functional limitations of Plaintiff’s neck impairment with respect to a
sedentary job that would require an individual to look down “all day long[, a]t least in the
frequent range.” (R. 56). The standard forms completed by state agency reviewing experts
inquire about certain postural functions but do not inquire about limitations looking down
or from side-to-side. (See R. 125-126).
In his decision, the ALJ did not explain how he weighed Plaintiff’s hearing
testimony regarding limitations in looking down or from side to side. The ALJ failed to
address these statements in relation to the objective medical evidence or the appropriate
factors. As a result, the Court cannot determine whether the ALJ accounted for these
statements in the RFC or rejected Plaintiff’s statements regarding her pain altogether.
Where, as here, an ALJ does not identify and discuss the evidence upon which he relies,
the Court cannot meaningfully review the ALJ’s determination. Clifton v. Chater, 79 F.3d
at 1009 (holding “[i]n the absence of ALJ findings supported by specific weighing of the
evidence, we cannot assess whether relevant evidence adequately supports the ALJ’s

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conclusion,” and thus the ALJ’s unexplained conclusion was “beyond meaningful
review”); see also SSR 16-3p. Accordingly, this error requires reversal and remand.
2.

Reaching

Plaintiff also argues that her left shoulder impairment requires additional limitations
in reaching. The vocational expert testified that if reaching was limited to two hours with
the left arm then no sedentary jobs would be available. (R. 55). While the RFC
determination excludes work “above shoulder level,” the ALJ’s decision did not address
Plaintiff’s alleged limitations in reaching in other directions—for example, Plaintiff’s
hearing testimony that reaching at shoulder length is painful, although not as painful as
reaching overhead (R. 43-44) and other statements in the record supporting her alleged
reaching limitations. (See, e.g., R. 1425, 1427). Rather, the ALJ’s explanation is limited to
a few conclusory statements referring generally to Plaintiff’s alleged limitations, but not
identifying any specific limitations. (See R. 24).
In the absence of an explanation in the ALJ’s decision, the Court cannot review
whether the ALJ applied the proper legal standards in his RFC determination. The VE
testified that the jobs identified as consistent with the operative hypothetical would be
eliminated for an individual who is limited to two hours per day of reaching in front or to
the sides. (R. 55). Thus, this error also requires remand for further consideration or
explanation.
V.

Conclusion
For the reasons set forth above, the Court finds the ALJ’s decision is not supported

by substantial evidence, and the ALJ failed to apply proper legal standards established by
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the Commissioner and the courts. Therefore, the decision of the Commissioner finding
Plaintiff not disabled for the relevant period is reversed and remanded for further
proceedings consistent with this opinion.
ORDERED this 7th day of September, 2021.

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