United States District Court, E.D. Oklahoma
LISA M. SWEENEY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration,  Defendant.
REPORT AND RECOMMENDATION
P. SHREDER UNITED STATES MAGISTRATE JUDGE
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.
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 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).
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,
of the Administrative Law Judge
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).
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. 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
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 ...