United States District Court, E.D. Oklahoma
MICHAEL S. HOGUE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration,  Defendant.
REPORT AND RECOMMENDATION
P. SHREDER UNITED STATES MAGISTRATE JUDGE
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.
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: 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
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).
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. §
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 (“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).
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
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 ...