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Whittington v. Berryhill

United States District Court, E.D. Oklahoma

March 9, 2017

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



         The claimant Natasha Whittington requests judicial review of a denial of benefits by the Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g). The claimant appeals the Commissioner's decision and asserts that 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 REMANDED.

         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 on February 13, 1982, and was thirty-two years old at the time of the most recent administrative hearing (Tr. 120). She completed twelfth grade and some college, and has worked as a black jack dealer, convenience store cashier, CNA, office manager, and tax preparer (Tr. 92, 345). The claimant alleges that she has been unable to work since July 12, 2011, due to PTSD, anxiety, OCD, depression, goiter, bad back, diabetes, heart murmur, underactive thyroid, and high blood pressure (Tr. 344).

         Procedural History

         On January 1, 2012, the claimant applied for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-05, and for supplemental security income payments under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85, on January 3, 2012. Her applications were denied. ALJ Trace Baldwin conducted two administrative hearings wherein the claimant did not have a representative. Accordingly, on June 26, 2014, ALJ Baldwin held a supplemental administrative hearing then found that the claimant was not disabled in a written opinion dated August 28, 2014 (Tr. 79-94). The Appeals Council denied review, so the ALJ's written opinion is the final decision of the Commissioner for purposes of this appeal. See 20 C.F.R. §§ 404.981, 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 residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), i. e., she could lift/carry twenty pounds occasionally and ten pounds frequently, stand/walk and sit for six hours each in an eight-hour workday, except that she needed the option to sit/stand at the workstation without a loss of productivity. Additionally, the ALJ determined that she could only occasionally push/pull (including hand and foot controls), climb ramps and stairs, stoop, kneel, and crouch; could never crawl or climb ladders, ropes, or scaffolding; but she could frequently balance and she had no manipulative, visual, or communicative limitations. Furthermore, he stated that she must not work at unprotected heights, around dangerous moving equipment or machinery, or on uneven or unstable work surfaces. Finally, he found that she could understand, remember, comprehend, and carry out simple work-related instructions and tasks, work with supervisors and co-workers on a superficial work basis, and could adapt to routine changes in the working environment but could not work with the general public (Tr. 86). The ALJ thus concluded that although the claimant could not return to her past relevant work, she was nevertheless not disabled because there was work that she could perform, i. e., the light jobs of sewing machine operator and price marker, as well as the sedentary jobs of addresser, jewelry charger, and hand polisher (Tr. 93).


         The claimant contends that the ALJ erred by: (i) failing to specify a frequency in relation to the sit/stand limitation in her RFC, and (ii) usurping the vocational expert's role. The undersigned Magistrate judge agrees with the claimant's first contention, and the Commissioner's decision should be reversed.

         The ALJ determined that the claimant had the severe impairments of affective disorder including major depressive disorder, dysthymic disorder, and bipolar disorder; anxiety disorder including PTSD and OCD; a personality disorder; meth abuse, in alleged remission; hypertension; diabetes; and obesity (Tr. 82). At the most recent administrative hearing, the ALJ called on vocational expert (“VE”) Margaret Kelsay to testify as to the claimant's past relevant work and ability to perform other work (Tr. 137-141). The ALJ asked the VE to describe the claimant's past relevant work, which the VE classified as: (i) black jack dealer, (ii) convenient store cashier, (iii) CNA, (iv) ...

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