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Johnson v. Berryhill

United States District Court, E.D. Oklahoma

September 25, 2017

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



         The claimant Jackie R. Johnson requests judicial review of a denial of benefits by the Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g). He appeals the Commissioner's decision and asserts that the Administrative Law Judge (“ALJ”) erred in determining he was not disabled. For the reasons discussed below, the Commissioner's decision is hereby REVERSED and 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 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[.]” 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 November 8, 1966, and was forty-seven years old at the time of the administrative hearing (Tr. 29, 184). He completed the twelfth grade, and has worked as truck driver and machine operator (Tr. 20, 216). The claimant alleges inability to work since December 31, 2007, due to depression, bipolar disorder, anxiety, and dyslexia (Tr. 215).

         Procedural History

         On November 9, 2012, 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. His applications were denied. ALJ J. Frederick Gatzke conducted an administrative hearing and determined that the claimant was not disabled in a written opinion dated December 2, 2014 (Tr. 13-21). The Appeals Council denied review, so the ALJ's written opinion is 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 his decision at step five of the sequential evaluation. He found that the claimant had the residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), except that he could only occasionally stoop, crouch, and kneel, and never climb ladders, ropes, or scaffolds. Additionally, the ALJ found that the claimant could frequently use the right dominant hand for reaching, handling, and fingering, but could not perform work requiring he drive a motor vehicle. Finally, the ALJ found that the claimant was able to perform simple one to two-step repetitive instructions, and that he could have incidental contact with the public and occasionally collaborate with coworkers (Tr. 17). The ALJ thus 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, e. g., motel housekeeper, conveyor line bakery worker, and small product assembler (Tr. 20-21).


         The claimant argues that the ALJ erred by: (i) failing to incorporate moderate limitations with regard to concentration, persistence, and pace; and (ii) failing to properly evaluate the opinion of his treating physician assistant. Because the Court finds that the ALJ failed to properly evaluate the claimant's mental impairments in light of the records and opinion from the claimant's treating physician assistant, the decision of the Commissioner must be reversed and the case remanded for further proceedings.

         The medical evidence reveals that the claimant had the severe impairments of right ganglionic cyst, right carpal tunnel syndrome, bipolar disorder, and panic disorder (Tr. 15). As relevant to this appeal, the medical records reveal that the claimant almost exclusively received treatment at the Rowland Flatt Hugo Rural Health Clinic by Physician Assistant Albert McLemore who was supervised by Dr. Teddy Rowland. Notes from Mr. McLemore indicate a lengthy treatment history for anxiety and depression (Tr. 306-383, 411-439, 456-490). Although he did not report anxiety symptoms at every appointment, the treatment notes have recurring notations regarding the claimant being positive for anxiety (Tr., e. g., 306, 316, 320, 348, 363, 419, 456, 460). One notation states that the claimant had previously been in counseling but that he was currently unable to afford to go (Tr. 314). The ...

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