Derrick v. Commissioner of Social Security
Filing
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MEMORANDUM OPINION --The final decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Memorandum Opinion. Signed by Magistrate Judge Shon T. Erwin on 8/11/15. (mc)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DONALD DERRICK,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
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Case No. CIV-14-795-STE
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of
the final decision of the Commissioner of the Social Security Administration denying
Plaintiff's applications for benefits under the Social Security Act. The parties have
consented to jurisdiction over this matter by a United States Magistrate Judge pursuant
to 28 U.S.C. § 636(c). Based on the Court’s review of the record and the issues
presented, the court REVERSES the Commissioner’s decision and REMANDS the case
for further proceedings consistent with this Memorandum Opinion.
I.
Procedural Background
Plaintiff’s applications for benefits were denied initially and on reconsideration.
Following an administrative hearing, an Administrative Law Judge (ALJ) issued the
unfavorable decision now under review. (TR. 15-20). The Appeals Council denied
Plaintiff’s request for review, making the ALJ’s decision the final decision of the
Commissioner. This judicial appeal followed.
II.
The Administrative Decision
The Commissioner followed the sequential evaluation process required by agency
regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R
§§ 404.1520; 416.920. The ALJ first determined that Plaintiff had not engaged in
substantial gainful activity after January 2, 2012, his alleged date of disability. (TR. 17).
At step two, the ALJ found Plaintiff to have the following severe impairments: essential
hypertension and gout. (TR. 17).
At step three, the ALJ determined neither of Plaintiff’s impairments meets or
medically equals the severity of one of the presumptively disabling impairments listed at
20 C.F.R. Part 404, Subpart P, Appendix 1. (TR. 17-18).
At the first phase of step four, the ALJ determined Plaintiff’s residual functional
capacity (RFC):
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to lift and carry 50 pounds occasionally
and 25 pounds frequently. The claimant can sit for about 6
hours during an eight-hour workday and can stand and walk
for about 6 hours during an eight-hour workday. The
claimant can frequently reach, handle and finger with his
right upper extremity, but can occasionally reach overhead
with his right upper extremity.
(TR. 18). Without detailing the exertional or nonexertional requirements of Plaintiff’s
past relevant work at the second phase of step four, the ALJ determined Plaintiff could,
nonetheless, perform the duties associated with his past relevant work:
The claimant is capable of performing past relevant work as
a cook and a production worker. This work does not require
the performance of work-related activities precluded by the
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claimant’s residual functional capacity (20 CFR 404.1565 and
416.965).
(TR. 19).
Accordingly, at step four of the sequential evaluation, the ALJ found Plaintiff was
not disabled from the alleged date of disability through the date of the ALJ’s decision.
III.
Standard of Review
This court reviews the Commissioner’s final decision “to determin[e] whether the
factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (quotation omitted).
IV.
Issues Presented
Plaintiff contends the ALJ erred in failing “to properly analyze the record for
obesity”; failing to discuss the “weight to all the physicians;” failing to include all of
Plaintiff’s impairments in the RFC, failing to do the required analysis at phase two of
step four of the sequential evaluation; failing to account for Plaintiff’s pain in the RFC;
and failing to properly analyze Plaintiff’s credibility.
V.
Analysis
A.
Obesity
Plaintiff contends the ALJ erred in failing to consider the effect of Plaintiff’s
alleged obesity in combination with the pain resulting from gout. But Plaintiff’s
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calculated body mass does not meet the definition of “obese” in the social security
regulations:
The National Institutes of Health (NIH) established medical
criteria for the diagnosis of obesity in its Clinical Guidelines
on the Identification, Evaluation, and Treatment of
Overweight and Obesity in Adults (NIH Publication No. 984083, September 1998). These guidelines classify
overweight and obesity in adults according to Body Mass
Index (BMI). BMI is the ratio of an individual’s weight in
kilograms to the square of his or her height in meters
(kg/m2). For adults, both men and women, the Clinical
Guidelines describe a BMI of 25-29.9 as “overweight” and a
BMI of 30.0 or above as “obesity.”
Titles II & XVIi: Evaluation of Obesity, SSR 02-1P (S.S.A. Sept. 12, 2002). As Defendant
notes, Plaintiff testified that he was 5’ 11” tall and weighed 186 pounds, which he
described as his “normal weight.” (TR. 26). According to the BMI calculator provided by
the National Heart, Lung and Blood Institute, a person of Plaintiff’s height and weight
has a body mass of 25.9.1 Under the regulations, Plaintiff is in the lower end of the
“overweight” category and does not, therefore, meet the definition of “obese.” The ALJ
had no duty to evaluate the effect of Plaintiff’s weight in determining Plaintiff’s RFC
because Plaintiff’s, weight, by his own testimony, does not fall within the range used to
define “obesity.”
B.
Analysis of Opinion Evidence
The ALJ gave no weight to the State agency’s finding that Plaintiff has no severe
physical impairments. (TR. 18). Plaintiff contends, however, that the ALJ erred in failing
“to describe the weight given to the treating physician’s [sic] or their opinions.” (ECF
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4, 2015).
See http://www.nhlbi.nih.gov/health/educational/lose_wt/BMI/bmicalc.htm (last visited August
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No. 14:4-5). In support of this contention, Plaintiff refers the court to the medical
records generally without specifying any particular medical opinion regarding workrelated limitations attributed to diagnosed impairments. Rather, the medical records
simply record diagnoses and treatment for medical conditions. In fact, the record is
devoid of any opinion by any treating physician regarding Plaintiff’s functional
impairments—the only type of opinions relevant to the determination of an RFC. See,
e.g., Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) (assessing treating
source medical opinion concerning nature and severity of impairment that rendered
claimant “unable to work an eight-hour day doing anything, sitting or standing”
(internal quotation marks omitted)); Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir.
2011) (assessing treating source’s opinion regarding exertional restrictions); 20 C.F.R.
§§ 404.1527(a)(2) and 416.927 (providing that physician’s medical opinion may include
opinion on what claimant can still do despite impairments and physical or mental
restrictions). In this case, there was nothing for the ALJ to weigh, and Plaintiff’s
assignment of error is fallacious.
C.
The ALJ’s RFC Determination
Plaintiff contends the ALJ erred in failing to consider how the pain from gout
would affect Plaintiff’s ability to do the standing and walking required of jobs classified
as requiring medium exertion. He also faults the ALJ for failing to explicitly include a
recitation of the requirements of Plaintiff’s past relevant work at phase two of step four.
(ECF No. 14:6-9).
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The Commissioner contends Plaintiff’s argument regarding the deficits in the
ALJ’s analysis at phase two of the fourth step of the sequential evaluation is not
properly developed and should not be considered by this court. (ECF No. 15:13-14).
This court disagrees. The deficiency is glaringly obvious. Moreover, the ALJ’s defective
step-four analysis is a legal error and requires reversal and remand.
“Step four of the sequential analysis ... is comprised of three
phases.” Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir.
1996). In the first phase, the ALJ must evaluate a claimant's
physical and mental residual functional capacity (RFC), ...
and in the second phase, he must determine the physical
and mental demands of the claimant’s past relevant work....
In the final phase, the ALJ determines whether the claimant
has the ability to meet the job demands found in phase two
despite the mental and/or physical limitations found in phase
one.... Henrie v. United States Dep't of Health & Human
Servs., 13 F.3d 359, 361 (10th Cir. 1993). At each of these
phases, the ALJ must make specific findings. See Henrie, 13
F.3d at 361.
Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). For the ALJ’s conclusion at
step four to be valid, the ALJ was required to have made “specific findings” of fact
regarding each of the three phases. See SSR 82–62, 1982 WL 31386, at *4; Sissom v.
Colvin, 512 F. App’x 762, 769 (10th Cir. 2013); SSR 82–62, 1982 WL 31386, at *4.
“Requiring the ALJ to make specific findings on the record at each phase of the step
four analysis provides for meaningful judicial review.” Winfrey, 92 F.3d at 1025. Here,
the ALJ failed to “conduct an appropriate analysis at phase two and, therefore, his
findings at phase three of the analysis were naturally compromised.” See Sissom, 512
F. App’x at 769; accord Winfrey, 92 F.3d at 1026. In fact, the ALJ made no findings at
the second phase of step four, leaving the court with nothing to review. Because the
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ALJ did not make alternative findings at step five, the court cannot conclude that this
failure was harmless. Cf. Best–Willie v. Colvin, 514 F. App’x 728, 738 (10th Cir. 2013)
(holding that step-four legal error was harmless because ALJ also found at step five
that the claimant could perform other jobs that existed in significant numbers in the
national economy); 20 C.F.R. §§ 404.1520(g), 416.920(g). Accordingly, remand is
required for further findings and analysis. See Sissom, 512 F. App’x at 769.
On remand, the ALJ will necessarily be required to evaluate Plaintiff’s credibility.
Therefore, the court need not address the credibility issue at this point in the
proceedings.
The final decision of the Commissioner is, therefore, REVERSED AND
REMANDED for further proceedings consistent with this Memorandum Opinion.
ENTERED on August 11, 2015.
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