United States District Court, E.D. Oklahoma
BOBBY E. MILLER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration,  Defendant.
REPORT AND RECOMMENDATION
P. SHREDER UNITED STATES MAGISTRATE JUDGE
claimant Bobby E. Miller requests judicial review pursuant to
42 U.S.C. § 405(g) of the decision of the Commissioner
of the Social Security Administration denying his application
for benefits under the Social Security Act. The claimant
appeals the decision of the Commissioner and asserts that the
Administrative Law Judge (“ALJ”) erred in
determining he 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 his physical or mental impairment or
impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national
economy[.]” 42 U.S.C. § 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.
review of the Commissioner's determination is limited in
scope by 42 U.S.C. § 405(g). This Court's review is
limited to two inquiries: whether the decision was supported
by substantial evidence, and whether the correct legal
standards were applied. See Hawkins v. Chater, 113
F.3d 1162, 1164 (10th Cir. 1997) [citation omitted]. The term
“substantial evidence” requires
“‘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). However, the Court may not reweigh the evidence nor
substitute its discretion for that of the agency. See
Casias v. Secretary of Health & Human Services, 933
F.2d 799, 800 (10th Cir. 1991). Nevertheless, 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 was born on May 31, 1950, and was sixty-five years
old at the time of the most recent administrative hearing
(Tr. 25, 221). He completed tenth grade, and has no past
relevant work (Tr. 18, 249). The claimant alleges he has been
unable to work since January 1, 1994, due to his lungs,
heart, and diabetes (Tr. 248).
October 20, 2013, the claimant applied for disability
insurance benefits under Title II of the Social Security Act,
42 U.S.C. §§ 401-434. His application was denied.
ALJ Jeffrey S. Wolfe held an administrative hearing and
determined the claimant was not disabled in a written
decision dated June 23, 2015 (Tr. 12-20). The Appeals Council
denied review, so the ALJ's written decision represents
the final decision of the Commissioner for purposes of this
appeal. See 20 C.F.R. § 404.981.
of the Administrative Law Judge
made his decision at step five of the sequential evaluation.
He found that, from the claimant's alleged onset date of
January 1, 1994 through the date last insured of December 31,
1997, the claimant retained the residual functional capacity
(RFC) to perform less than the full range of light work as
defined in 20 C.F.R. § 404.1567(b), i. e., he
could lift/carry twenty pounds occasionally and ten pounds
frequently, stand/walk for six hours during an eight-hour
workday and had no limitations on his ability to sit.
Additionally, the ALJ found the claimant could frequently
handle and finger bilaterally, but that he could only
occasionally reach overhead bilaterally, crouch, kneel, bend,
and squat. Finally, the ALJ found the claimant must refrain
from exposure to noxious dusts, odors, gases, fumes, and
areas of poor ventilation in the workplace (Tr. 16). The ALJ
thus concluded that although the claimant had no past
relevant work to return to, he was nevertheless not disabled
because there was work he could perform, i. e., mail
clerk, bakery worker, and counter clerk (Tr. 18-20).
claimant contends that the ALJ erred by: (i) relying solely
on the opinion of the physician who testified at the
administrative hearing rather than evaluating all the
evidence in formulating his RFC, (ii) failing to properly
weigh a treating physician opinion that the claimant was
disabled, and (iii) improperly assessing his credibility. The
undersigned Magistrate Judge agrees that the
Commissioner's decision should be reversed and remanded.
determined that the claimant had the severe impairments of
chronic obstructive pulmonary disease and status-post
bilateral carpal tunnel surgeries on the right and left (Tr.
15). During the relevant time period for this case, records
from the Veteran's Administration (VA) indicate that the
claimant underwent carpal tunnel release for both wrists, was
considered to have moderately active pulmonary inflammatory
disease, and there was some consideration given to whether
the claimant had asbestosis given pleural calcification on
the diaphragm (Tr. 295, 299, 324, 328, 379-393, ...