United States District Court, E.D. Oklahoma
TERESA L. MACMILLAN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
P. SHREDER UNITED STATES MAGISTRATE JUDGE.
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.
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. 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
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
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.
of the Administrative Law Judge
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).
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. The undersigned
Magistrate Judge agrees with the claimant's second
contention, and the Commissioner's decision should
therefore be reversed.
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 ...