United States District Court, E.D. Oklahoma
REPORT AND RECOMMENDATION
P. SHREDER UNITED STATES MAGISTRATE JUDGE
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.
Security Law and Standard of Review
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.
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
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
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.
of the Administrative Law Judge
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).
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. The undersigned Magistrate Judge agrees
with the claimant's first contention, and the decision of
the Commissioner should be reversed.
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). ...