United States District Court, E.D. Oklahoma
REPORT AND RECOMMENDATION
P. SHREDER UNITED STATES MAGISTRATE JUDGE
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.
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 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).
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.
of the Administrative Law Judge
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).
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.
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) ...