United States District Court, E.D. Oklahoma
FELICIA BARGAR ex rel. BEVERLY ANN BARGAR, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration,  Defendant.
OPINION AND ORDER
P. SHREDER, UNITED STATES MAGISTRATE JUDGE
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.
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 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.
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
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.
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,
of the Administrative Law Judge
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.
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
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 ...