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MacMillan v. Berryhill

United States District Court, E.D. Oklahoma

February 9, 2018

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



         The claimant Teresa L. MacMillan 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 that she was not disabled. As discussed below, the undersigned Magistrate Judge RECOMMENDS that the Commissioner's decision be 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. Sec'y of Health & Human Svcs., 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 October 18, 1964, and was fifty years old at the time of the administrative hearing (Tr. 37, 188). She completed the twelfth grade, and has worked as a shuttle bus driver (Tr. 30, 215). The claimant alleges that she has been unable to work since January 24, 2011, due to two left shoulder surgeries, whiplash, severe depression and anxiety, severe carpal tunnel, arthritis, post-traumatic stress disorder, lack of muscle strength from being in a wheelchair for a year, aches and pains in her legs, diabetes, and nausea (Tr. 214).

         Procedural History

         On August 2, 2013, the claimant applied for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Her application was denied. ALJ Deborah Rose conducted an administrative hearing and determined that the claimant was not disabled in a written opinion dated August 24, 2015 (Tr. 12-31). The Appeals Council denied review, so the ALJ's opinion is 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 her decision at step five of the sequential evaluation. She found that the claimant had the residual functional capacity (RFC) to perform a reduced range of light work as defined in 20 C.F.R. §§ 404.1567(b), i. e., she can lift/carry/push/pull twenty pounds occasionally and ten pounds frequently and stand/walk and sit six hours in an eight-hour workday, but that she cannot operate left hand controls or do any overhead reaching with the left upper extremity, and that she could never climb ladders, ropes, or scaffolds. Additionally, she found that the claimant could understand and carry out simple instructions; must avoid high-stress, fast-paced environments; can occasionally relate to the general public, co-workers, and supervisors superficially for incidental work purposes; and that she can adapt to a routine work setting without more than occasional changes in routine (Tr. 16). The ALJ then concluded that although the claimant could not return to her past relevant work, she was nevertheless not disabled because there was work she could perform, i. e., conveyor line bakery worker, bottling line attendant, and agricultural produce sorter (Tr. 30-31).


         The claimant asserts that the ALJ erred by: (i) failing to find additional severe impairments; (ii) failing to properly assess her RFC, including the analysis of a functional capacity evaluation and treating physician opinions; and (iii) improperly identifying jobs at step five.[3] The undersigned Magistrate Judge agrees with the claimant's second contention, and the Commissioner's decision should therefore be reversed.

         The ALJ determined that the claimant had the severe impairments of obesity, left shoulder impairment, degenerative disc disease, osteoarthritis, peripheral vascular disease, anxiety, depression, and personality disorder, as well as the nonsevere impairments of dermatochalasis, myopia, astigmatism, and presbyopia bilaterally, and carpal tunnel syndrome (Tr. 14). On January 24, 2011, the claimant was involved in an automobile collision on the job in which she was driving a bus that was spun around and flipped (Tr. 322). She underwent a left shoulder arthroscopy in May 2011 (Tr. 493). A July 26, 2011 MRI of the cervical spine revealed mild scoliosis of the cervicothoracic spine with cervical straightening (Tr. 326). On December 7, 2011, Dr. Tyler Boone indicated that changes to the claimant's cervical spine were minimal, but that ...

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