United States District Court, W.D. Oklahoma
MEMORANDUM OPINION AND ORDER
T. ERWIN UNITED STATES MAGISTRATE JUDGE
brings this action pursuant to 42 U.S.C. § 405(g) for
judicial review of the final decision of the Commissioner of
the Social Security Administration denying Plaintiff's
applications for benefits under the Social Security Act. The
Commissioner has answered and filed a transcript of the
administrative record (hereinafter TR. __). The parties have
consented to jurisdiction over this matter by a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c).
parties have briefed their positions, and the matter is now
at issue. Based on the Court's review of the record and
the issues presented, the Court REVERSES AND
REMANDS the Commissioner's decision.
Social Security Administration denied Plaintiff's
applications for disability insurance benefits and
supplemental security income initially and on
reconsideration. Following an administrative hearing, an
Administrative Law Judge (ALJ) issued an unfavorable
decision. (TR. 15-24). The Appeals Council denied
Plaintiff's request for review. (TR. 1-3). Thus, the
decision of the ALJ became the final decision of the
THE ADMINISTRATIVE DECISION
followed the five-step sequential evaluation process required
by agency regulations. See Fischer-Ross v. Barnhart,
431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. §§
404.1520 & 416.920. At step one, the ALJ determined that
Plaintiff had not engaged in substantial gainful activity
since September 8, 2013, the alleged disability onset date.
(TR. 17). At step two, the ALJ determined Ms. Rodriguez had
the following severe impairments: residuals from childhood
leg fracture and degenerative disc disease of the spine. (TR.
17). At step three, the ALJ found that Plaintiff's
impairments did not meet or medically equal any of the
presumptively disabling impairments listed at 20 C.F.R. Part
404, Subpart P, Appendix 1 (TR. 18).
four, the ALJ found that Plaintiff was not capable of
performing her past relevant work. (TR. 22). The ALJ further
concluded that Ms. Rodriguez retained the residual functional
capacity (RFC) to:
[P]erform sedentary work as defined in 20 C.F.R. 404.1567(a)
and 416.967(a) except she can sit for 7 hours in an 8-hour
workday and stand and/or walk for a total of 1 hour in an
8-hour workday. She can never use her feet for the operation
of foot controls and never climb ladders, ropes, or
scaffolds. She can occasionally climb ramps and stairs as
well as occasionally balance and stoop. She can never kneel,
crouch, or crawl. She should be permitted to utilize a walker
to get to and from the workstation.
this RFC, the ALJ made additional findings at step five.
There, the ALJ presented several limitations to a vocational
expert (VE) to determine whether there were other jobs in the
national economy that Plaintiff could perform. (TR. 58-59).
Given the limitations, the VE identified three jobs from the
Dictionary of Occupational Titles (DOT). (TR. 60). The ALJ
adopted the testimony of the VE and concluded that Ms.
Rodriguez was not disabled based on her ability to perform
the identified jobs. (TR. 23-24).
appeal, Plaintiff alleges the ALJ erred: (1) at step two, (2)
at step three, and (3) in the evaluation of opinion evidence
from a treating physician.
STANDARD OF REVIEW
Court reviews the Commissioner's final “decision to
determin[e] whether the factual findings are supported by
substantial evidence in the record and whether the correct
legal standards were applied.” Wilson v.
Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010).
“Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Id. (quotation omitted).
the court considers whether the ALJ followed the applicable
rules of law in weighing particular types of evidence in
disability cases, the court will “neither reweigh the
evidence nor substitute [its] judgment for that of the
agency.” Vigil v. Colvin, 805 F.3d 1199, 1201
(10th Cir. 2015) (internal quotation marks omitted).
two, the ALJ concluded that Plaintiff had severe impairments
involving “residuals from childhood leg fracture and
degenerative disc disease of the spine.” (TR. 17).
According to Ms. Rodriguez, the ALJ failed to consider her
tethered spinal cord as a severe impairment at step two. (ECF
No. 15:17-23). At step two, plaintiff bears the burden of
proof and must “demonstrate an impairment or
combination of impairments that significantly limits the
claimant's ability to do basic work activity.”
Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir.
1997). Even if plaintiff had satisfied her burden to
show that her tethered spinal cord was a severe impairment,
the ALJ's step two finding which did not include the
disorder as a severe impairment does not constitute
reversible error. “Under the regulations, once an ALJ
finds that a claimant has at least one severe impairment, he
does not err in failing to designate other disorders as
severe at step two, because at later steps the agency
‘will consider the combined effect of all of
[plaintiff's] impairments without regard to whether any
such impairment, if considered separately, would be of
sufficient severity.'” Barrett v. Astrue,
340 Fed.Appx.. 481, 484 (10th Cir. 2009) (unpublished)
(quoting 20 C.F.R. § 404.1523). The ALJ “made an
explicit finding that [plaintiff] suffered from [a] severe
impairment[ ]. That was all the ALJ was required to do”
at step two. Oldham v. Astrue, 509 F.3d 1254, 1256
(10th Cir. 2007).
three, an ALJ is required to determine whether a
claimant's impairments are “equivalent to one of a
number of listed impairments that the Secretary acknowledges
as so severe as to preclude substantial gainful
activity.” Clifton v. Chater, 79 F.3d 1007, 1009
(10th Cir. 1996) (quotation omitted). In so doing, he
must “discuss the ...