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Simmons v. Berryhill

United States District Court, E.D. Oklahoma

March 2, 2017

TAMMIE SIMMONS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, [1] Defendant.

          REPORT AND RECOMMENDATION

          STEVEN P. SHREDER UNITED STATES MAGISTRATE JUDGE

         The claimant Tammie Simmons 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 the Administrative Law Judge (“ALJ”) erred in determining she was not disabled. As discussed below, the undersigned Magistrate Judge RECOMMENDS that the Commissioner's decision be 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 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 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 born March 19, 1962, and was fifty-two years old at the time of the administrative hearing (Tr. 25). She completed the twelfth grade, and has worked as a bookkeeper (Tr. 17, 145). The claimant alleges that she has been unable to work since her application date of January 20, 2012, due to neck, shoulder, and arm problems, as well as arthritis (Tr. 145).

         Procedural History

         On January 20, 2012, the claimant applied for supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85. Her application was denied. ALJ Doug Gabbard, II, held an administrative hearing and determined the claimant was not disabled in a written opinion dated July 7, 2014 (Tr. 10-19). The Appeals Council denied review, so the ALJ's opinion represents the Commissioner's final decision for purposes of this appeal. See 20 C.F.R. § 416.1481.

         Decision of the Administrative Law Judge

         The ALJ made his decision at step five of the sequential evaluation. He found that the claimant retained the ability to perform light work as defined in 20 C.F.R. § 416.967(b), except that he limited her to semi-skilled work (work which requires understanding, remembering, and carrying out some detailed skills, but does not require doing more complex work duties) where interpersonal contact with supervisors and coworkers is on a superficial work basis, and he found she could attend and concentrate for extended periods with normal work breaks, adapt to work situations, and have only occasional contact with the general public. Additionally, he determined that she could not climb ladders, ropes, or scaffolds, and could only occasionally reach, including overhead, with her right dominant arm (Tr. 14). The ALJ concluded that although the claimant could not return to her past relevant work, she was nevertheless not disabled because there was work she could perform, e. g., conveyor line bakery worker and parking lot attendant (Tr. 18-19).

         Review

         The claimant contends that the ALJ erred by: (i) improperly evaluating her credibility, (ii) failing to properly assess her RFC, particularly in evaluating a treating physician opinion; and (iii) failing to fully develop the record.[3] The undersigned Magistrate Judge agrees with the claimant's first contention, and the decision of the Commissioner should be reversed.

         The ALJ found that the claimant had the severe impairments of degenerative disc disease in the back, status post cervical fusion, affective disorder, and anxiety disorder, as well as the nonsevere impairments of chronic pain syndrome, insomnia, hand pain, and some sleeping problems (Tr. 12). The relevant medical evidence reveals that the claimant's treating physician, Dr. Frank Hackle, along with Physician's Assistant Michael Jenson, treated the claimant in Tulsa, Oklahoma. Diagnoses included cervical postlaminectomy syndrome with right radiculopoathy, upper extremity complex regional pain syndrome, cervical dystonia, anxiety and depression, and insomnia (Tr. 252). Musculoskeletal assessments indicate that she regularly had paraspinous spasms of the cervical region extending to both shoulders with tender intervertebral space at ¶ 4-5, C5-6, and C6-7, with a negative Spurling test and hypersensitivity of the right upper extremity extending to the distal digits. She had 4/5 strength in her right upper extremity myotomes, with 5/5 elsewhere (Tr. 251, 303-322). ...


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