United States District Court, W.D. Oklahoma
MEMORANDUM OPINION AND ORDER
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
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).
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.
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 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. 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).
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.
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).
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.
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).
ERROR IN THE EVALUATION OF PLAINTIFF'S TESTIMONY
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
ALJ's Duty to Evaluate Credibility
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 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.)
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.
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 ...