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Hogue v. Berryhill

United States District Court, E.D. Oklahoma

March 10, 2017

MICHAEL S. HOGUE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, [1] Defendant.

          REPORT AND RECOMMENDATION

          STEVEN P. SHREDER UNITED STATES MAGISTRATE JUDGE

         The claimant Michael S. Hogue 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. He appeals the decision of the Commissioner and asserts that the Administrative Law Judge (“ALJ”) erred in determining he was not disabled. For the reasons set forth 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 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.[2]

         Judicial 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: 1) whether the decision was supported by substantial evidence, and 2) 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's Background

         The claimant was born on April 1, 1976, and was thirty-eight years old at the time of the administrative hearing (Tr. 30). He completed the eleventh grade, and has worked as a trencher (Tr. 21, 185). The claimant alleges he has been unable to work since March 2, 2010, due to a head injury from 1990 that affected his whole brain, major depressive disorder, panic disorder, agoraphobia, osteoarthritis in his ankle, depression with psychosis, and hyperlipidemia (Tr. 184).

         Procedural History

         On September 28, 2012, the claimant applied for supplemental security income payments under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85. His application was denied. ALJ Bernard Porter held an administrative hearing and determined the claimant was not disabled in a written decision dated October 8, 2014 (Tr. 9-22). 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. § 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 (“RFC”) to perform a range of light work as defined in 20 C.F.R. § 416.967.1567(b), i. e., he could lift/carry twenty pounds occasionally and ten pounds frequently, sit up to six hours in an eight-hour workday, stand/walk six hours in an eight-hour workday, and could push/pull as much as he is able to lift/carry. Additionally, the ALJ limited him to occasional use of foot controls and occasional overhead reaching; found that he is able to occasionally climb ramps and stairs, but should not climb ladders or scaffolds; he could frequently balance, occasionally stoop, and should not crawl. Furthermore, the ALJ determined that he should not work around unprotected heights or moving mechanical parts and should avoid temperature extremes. Finally, the ALJ limited him to simple tasks and work-related decisions, having no contact with the public, and requiring a sit/stand opinion that will allow for a brief positional change of position every thirty minutes lasting three to four minutes at a time (Tr. 13). ALJ concluded that although the claimant could not return to his past relevant work, he was nevertheless not disabled because there was work he could perform, i. e., garment bagger, garment sorter, and electronics worker (Tr. 21-22).

         Review

         The claimant contends that the ALJ erred: (i) by failing to properly assess his credibility, and (ii) by failing to properly account for his limitations in his RFC. The undersigned Magistrate Judge agrees with the claimant's first contention.

         The ALJ determined that the claimant had the severe impairments of obesity, polysubstance abuse, major depressive disorder with psychotic features, personality disorder, anxiety disorder with panic attacks, osteoarthritis of the ankle, posttraumatic stress disorder, and a history of learning disorder (Tr. 11). The relevant medical evidence reveals that the claimant was hospitalized for eight days in April 2012 to undergo laparoscopic cholecystectomy (Tr. 260-334). In June 2012, he injured his shoulder while mowing the lawn (Tr. 250). An x-ray revealed fixation screws, but that the osseous structures were intact without fracture, and there was no evidence of screw loosening or fracture (Tr. 35). In May 2013, the claimant fell down an embankment and re-injured his right hip, and was prescribed ...


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