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Bargar ex rel. Bargar v. Berryhill

United States District Court, E.D. Oklahoma

September 27, 2017

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



         The claimant Felicia Bargar ex rel. Bevery Ann Bargar 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 that the Administrative Law Judge (“ALJ”) erred in determining she was not disabled. For the reasons discussed below, the Commissioner's decision 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[.]” 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 January 25, 1960, and was fifty-two years old on her alleged disability onset date, and fifty-five years old on the date of her death (Tr. 217, 1229). She has a college degree in criminal justice, and has worked as a social service aide, mental health aide, hand cutter, and construction worker (Tr. 44, 298, 1068, 1071-1072). The claimant alleges that she has been unable to work since an amended onset date of November 16, 2012, due to spinal fusion, heart problems, depression, anxiety, and pain (Tr. 244, 297).

         Procedural History

         On September 12, 2012, the claimant applied for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and on September 18, 2012, she applied for supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85 (Tr. 217-26). Her applications were denied. ALJ Doug Gabbard, II conducted an administrative hearing and determined that the claimant was not disabled in a written opinion dated May 15, 2014 (Tr. 11-32). The Appeals Council denied review, but this Court granted the Commissioner's Unopposed Motion to Reverse and Remand in Case No. CIV-14-346-SPS, and remanded the case for further proceedings on March 25, 2015 (Tr. 1077-81). On remand, ALJ Luke Liter conducted an administrative hearing and found that the clamant was disabled beginning July 25, 2014, in a decision dated December 16, 2015 (Tr. 1033-51). The Appeals Council denied review, so the ALJ's July 2014 opinion represents 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 a limited range of light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), i. e., she could lift/carry/push/pull twenty pounds occasionally and ten pounds frequently; sit/stand/walk for six hours out of an eight-hour workday; occasionally climb, balance, stoop, kneel, crouch, and crawl; could not tolerate even moderate exposure to extreme cold and extreme heat; could never be exposed to fumes, odors, dusts, gases, or poor ventilation; and was limited to simple tasks (defined as unskilled work with a specific vocational preparation of one or two) (Tr. 1038). The ALJ concluded that prior to July 25, 2014, although the claimant was unable to perform her past relevant work, there was work in the national economy that she could perform, i. e., mail clerk, bench assembler, and production inspector (Tr. 1049-50). On July 25, 2014, the claimant's age category changed, leading to a finding that the claimant was disabled on that date according to Medical-Vocational Rule 202.06, i. e., “the Grids.” Thus, the ALJ found that the claimant was not disabled prior to July 25, 2014, but became disabled on that date and remained disabled until her death on January 21, 2015 (Tr. 1049-51). The claimant appeals that portion of the ALJ's opinion finding her not disabled prior to July 25, 2014.


         The claimant contends that the ALJ erred by failing to properly: (i) account for her need to lie down flat, alternately sit/stand, and use her nebulizer during the workday; and (ii) analyze her credibility. The Court agrees that the ALJ did not properly evaluate the claimant's subjective statements, and the decision of the Commissioner must therefore be reversed and the case remanded for further proceedings.

         The ALJ found that the claimant had the severe impairments of status post lumbar fusion, generalized anxiety disorder, major depressive disorder, and chronic obstructive pulmonary disease, but that her hyperlipidemia and hypertension were non-severe (Tr. 1036-37). The relevant medical records reveal that the claimant injured her back in March 2009 and underwent two back surgeries (Tr. 456-76, 551-63). On July 14, 2009, Dr. Mangels performed a posterior lumbar decompression and fusion at ¶ 5-S1, and removed a large disk herniation at ¶ 5-S1 (Tr. 461-69). On January 7, 2011, Dr. Mangels removed the hardware placed in July 2009 because the claimant remained symptomatic despite a solid fusion (Tr. 551-61, 586-99). Dr. DeLia managed the claimant's medications for hypothyroidism, chronic low back pain, restless leg syndrome, neuropathic pain, insomnia, asthma, sciatica, and muscle pain between April 2011 and January 2013 ...

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