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Crumb v. Berryhill

United States District Court, W.D. Oklahoma

November 14, 2017

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



         Plaintiff 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 application for disability insurance benefits under the Social Security Act. The Commissioner has answered and filed 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).

         The 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.


         Ms. Crumb applied for disability benefits alleging an onset date of October 26, 2012. (TR. 162-166). The Social Security Administration (SSA) denied Plaintiff's application initially, but on reconsideration, the SSA found that Ms. Crumb had been disabled beginning January 7, 2014. (TR. 12). Ms. Crumb appealed the finding that her disability had not started earlier, and an administrative hearing was held. (TR. 30-71). Following the hearing, an Administrative Law Judge (ALJ) issued a partially unfavorable decision. (TR. 12-24). The ALJ affirmed the findings on reconsideration-that Ms. Crumb was disabled beginning January 7, 2014, but not before. (TR. 12-24). Plaintiff appealed the decision regarding her onset date, alleging that she was disabled beginning October 26, 2012, but the Appeals Council denied Plaintiff's request for review. (TR. 1-3). Thus, the decision of the ALJ became the final decision of the Commissioner.


         The ALJ 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. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since October 26, 2012, the alleged disability onset date. (TR. 14-15). At step two, the ALJ determined Ms. Crumb had eleven severe impairments. (TR. 15). Beginning October 26, 2012, Ms. Crumb suffered from severe diabetes mellitus, hypertension, reflex sympathetic dystrophy of the right lower extremity status post multiple surgeries, nonalcoholic steatohepatitis, inflammatory arthritis, degenerative disc disease, chronic pain syndrome, and obesity. (TR. 15). Beginning January 7, 2014, the ALJ found two additional severe impairments: major depressive disorder and anxiety disorder. (TR. 15) And beginning January 17, 2015, the ALJ found one more severe impairment-obstructive sleep apnea syndrome. (TR. 15). 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. 15).

         At step four, the ALJ found that Plaintiff was not capable of performing any past relevant work. (TR. 21). The ALJ further concluded that as of the onset date, Ms. Crumb retained the residual functional capacity (RFC) to:

[L]ift and carry 10 pounds occasionally and less than 10 pounds frequently. The claimant can sit for about 6 hours during an eight-hour workday and can stand and walk for at least 2 hours during an eight-hour workday. The claimant can occasionally climb, balance, stoop, kneel, crouch, and crawl. The claimant can understand, remember and carry out simple, routine, and repetitive tasks. The claimant can respond appropriately to supervisors, co-workers, and usual work situations, but can have no contact with the general public.

(TR. 18).

         Utilizing 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 have performed between October 26, 2012 and January 6, 2014. (TR. 67). Given the limitations, the VE identified three jobs from the Dictionary of Occupational Titles (DOT). (TR. 68). The ALJ adopted the testimony of the VE and concluded that Ms. Crumb was not disabled between October 26, 2012 and January 6, 2014, based on her ability to perform the identified jobs. (TR. 23-24).


         On appeal, Plaintiff alleges the ALJ erred: (1) in the consideration of her testimony regarding three work-related limitations, (2) in failing to consider a particular agency ruling when formulating the RFC, and (3) in evaluating the opinion of a consultative examiner.


         This 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).

         While 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).


         At the hearing, Ms. Crumb testified: (1) she used a cane to walk, (2) suffered from chronic diarrhea, and (3) needed to elevate her right leg 2-3 hours per day, 2-3 days per week due to leg pain and swelling. (TR. 42-43, 46-50, 54-57). According to Plaintiff, the ALJ erred in: (1) evaluating the credibility of Ms. Crumb's allegations and (2) failing to consider the effect of these impairments in formulating the RFC. (ECF No. 13:8-13). In her latter argument, Ms. Crumb rightfully recognizes that the ALJ could have failed to include the limitations because the ALJ deemed Plaintiff not credible. (ECF No. 13:8). However, as Plaintiff points out, the ALJ: (1) failed to explain whether he had initially deemed the testimony credible or not and (2) instead relied on boilerplate language in the credibility determination. (ECF No. 13:8-9).

         A. ALJ's Duty to Evaluate Credibility

         The assessment of a claimant's RFC generally requires the ALJ to make findings regarding the credibility of testimony describing “the intensity, persistence, and functionally limiting effects of . . . symptoms, ” such as pain and other subjective complaints, that are associated with the claimant's medically determinable impairments. See Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010); SSR 96-7p, 1996 WL 347186, at *1 (July 2, 1996). In performing a credibility analysis, the ALJ must consider various factors[1] and “set[ ] forth the specific evidence he relie[d] on in evaluating the claimant's credibility.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012); see Wilson, 602 F.3d at 1144 (noting that the ALJ is required to closely and affirmatively link his credibility findings to substantial evidence in the record.)

         The ALJ must give specific reasons for the credibility finding, and must be sufficiently specific regarding the weight given to the individual's statements and the reasons for that weight. SSR 96-7p, at *4. It is not sufficient to make a conclusory statement that “the individual's allegations have been considered” or that “the allegations are (or are not) credible.” Id.

         B. Plaintiff's Testimony

         At the hearing, Plaintiff testified regarding diarrhea, use of a cane, and need to elevate her right leg. (TR. 42-50, 54-57). According to Ms. Crumb:

• She used a cane which had been recommended by a doctor, but even so, she did not walk much,
. Problems with her right ankle and leg rendered her unable to drive,
• Sitting for more than 15-20 minutes caused her right leg to hurt and she had to “have ...

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