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Sweeney v. Berryhill

United States District Court, E.D. Oklahoma

March 10, 2017

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



         The claimant Lisa M. Sweeney 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 February 26, 1973, and was forty-two years old at the time of the most recent administrative hearing (Tr. 658). She completed the twelfth grade and also obtained a CNA certificate, and has worked as an automobile assembler, door assembler, and mental retardation aide (Tr. 158, 632). The claimant alleges that she has been unable to work since her first application date of July 3, 2007, due to type II diabetes, chronic hepatitis C, depression, obesity, high blood pressure, asthma, anxiety, and panic attacks (Tr. 151).

         Procedural History

         On November 13, 2009, the claimant applied for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and for supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85. Her applications were denied. ALJ Michael Kirkpatrick held an administrative hearing and determined the claimant was not disabled in a written opinion dated October 12, 2011 (Tr. 18-29). The Appeals Council denied review, but this Court reversed in Case No. CIV-13-124-RAW-SPS, and remanded with instructions to properly assess the claimant's RFC and account for her pain (Tr. 746-758). On remand, ALJ Deborah L. Rose held an administrative hearing and again determined that the claimant was not disabled in a written opinion dated August 24, 2015 (Tr. 612-634). In the meantime, the claimant filed subsequent applications for disability insurance benefits and supplemental security income benefits, and those applications were denied. ALJ Bernard Porter held an administrative hearing and determined that the claimant was not disabled in a written opinion dated September 22, 2014 (Tr. 762-783). Upon remand from this Court in Case No. CIV-13-124-RAW-SPS, the Appeals Council remanded the original applications and instructed the ALJ to consider the subsequent decision if necessary (Tr. 800). Accordingly, ALJ Rose's opinion represents the Commissioner's final decision for purposes of this appeal. See 20 C.F.R. §§ 404.981, 416.1481.

         Decision of the Administrative Law Judge

         The ALJ made her decision at step five of the sequential evaluation. She found that the claimant retained the ability to perform light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), i. e., the claimant could lift/carry twenty pounds occasionally and ten pounds frequently, stand/walk for six hours in an eight-hour workday, and sit for six hours in an eight-hour workday, but that she required a sit/stand option that would allow her to briefly change position for approximately three to four minutes at a time, about every thirty minutes without leaving the workstation. Additionally, she could occasionally operate hand and foot controls, kneel, and climb ramps and stairs; she could never climb ladders, ropes, or scaffolds, crawl, or be exposed to temperature extremes or hazards, such as unprotected heights and dangerous moving machinery. She could also frequently balance, stoop, crouch, handle, and finger, but have no more than occasional exposure to respiratory irritants. Finally, the ALJ found that the claimant can understand, remember, and carry out simple instructions, can make simple work-related decisions, and can occasionally interact with supervisors, coworkers, and the public (Tr. 619). 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., inspector/hand packager, bench assembler, and bagger (Tr. 632-633).


         The claimant contends that the ALJ erred by: (i) failing to properly assess her RFC, and (ii) improperly determining the jobs she could perform at step five.[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 diabetes mellitus, hepatitis C, obesity, asthma, migraine headaches, osteoarthritis, ischemic heart disease, depression, anxiety with panic, somatoform disorder, and personality disorder (Tr. 615). The relevant medical evidence reveals that the claimant received regular treatment at the Health and Wellness Center Sequoyah County, in Sallisaw, Oklahoma and the Stigler Health & Wellness Center. Notes reflect diagnoses of diabetes, a depressive disorder not otherwise specified, hypertension, and hepatitis C (Tr. 307-325, 404-407, 478-573). Later treating notes indicate that the claimant's diabetes was uncomplicated, but that it was often considered uncontrolled (Tr. 1084). On October 27, 2013, the claimant presented to the emergency room with a complaint of high blood sugar, and was noted to have leg swelling (Tr. 1136). On May 7, 2014, her treating physician Dr. Mark Rogow wrote that the claimant could not work and was, in his opinion, totally and permanently ...

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