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Moore v. Berryhill

United States District Court, E.D. Oklahoma

September 22, 2017

BARBARA A. MOORE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, [1] Defendant.



         The claimant Barbara A. Moore requests judicial review pursuant to 42 U.S.C. § 405(g) of the decision of the Commissioner of the Social Security Administration denying her application for benefits under the Social Security Act. She appeals the decision of the Commissioner and asserts that the Administrative Law Judge (“ALJ”) erred in determining she was not disabled. For the reasons set forth below, the decision of the Commissioner is hereby 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[.]” 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 June 13, 1964, and was fifty years old at the time of the administrative hearing (Tr. 41). She completed high school, and has previously worked as a personal care aide, cook, and assistant manager (Tr. 29, 238). The claimant alleges she has been unable to work since August 25, 2013, due to nerve damage, back pain, chronic obstructive pulmonary disease (COPD), emphysema, post-traumatic stress disorder, nervous condition, depression, bi-polar disorder, high blood pressure, menopause, and a heart condition (Tr. 237).

         Procedural History

         On March 26, 2013, 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 James Bentley held an administrative hearing and determined the claimant was not disabled in a written decision dated December 24, 2014 (Tr. 19-31). 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, 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 less than the full range of light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), i. e., she could lift/carry twenty pounds occasionally and ten pounds frequently, sit and stand/walk for six hours each in an eight-hour workday, but that she must have a sit/stand option, meaning a temporary change in position every twenty minutes, provided she did not leave the work space so as to not diminish pace or production. Additionally, he found that she could only occasionally stoop, kneel, crouch, and crawl, and she must avoid exposure to dust, fumes, odors, and poorly ventilated areas. Finally, he found that she was capable of only simple tasks with routine supervision, and that she was further limited to only occasional contact with co-workers, supervisors, and the general public (Tr. 24). The ALJ concluded that although the claimant could not perform her past relevant work, she was nevertheless not disabled because there was work she could perform, i. e., small product assembler, electrical accessory assembler, and inspection packer (Tr. 29-31).


         The claimant contends that the ALJ erred by: (i) failing to account for her need for portable oxygen and a cane, and (ii) failing to properly assess her credibility. The Court agrees that the ALJ erred in assessing the evidence as to the claimant's need for a cane, and the decision of the ALJ should be reversed and remanded.

         The ALJ determined that the claimant had the severe impairments of major depression, anxiety disorder, panic attacks, psychosis, PTSD, bipolar syndrome, chronic pain syndrome, obesity, and COPD, as well as the non-severe impairments of coronary artery disease, degenerative disc disease of the lumbar spine, degenerative joint disease of the right knee, and right knee sprain (Tr. 22). The medical evidence relevant to this appeal reveals that the claimant received treatment at Rowland Flatt Clinic, where treatment notes reflect the claimant was treated for COPD, dyspnea, and frequent wheezing (Tr. 453). On August 22, 2012, the claimant's O2 saturation was 96% on room air but she had coarse breath sounds throughout (Tr. 454). On March 11, 2013, the claimant was noted to be on oxygen due to an O2 saturation test (Tr. 420). The claimant was counseled about cigarette smoking and quitting, but was unwilling to do so (Tr. 551). A pulmonary function test performed on April ...

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