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Brown v. Berryhill

United States District Court, E.D. Oklahoma

February 9, 2018

KENNETH SCOTT BROWN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, [1] Defendant.

          REPORT AND RECOMMENDATION

          STEVEN P. SHREDER, UNITED STATES MAGISTRATE JUDGE.

         The claimant Kenneth Scott Brown requests judicial review of a denial of benefits by the Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g). He appeals the Commissioner's decision and asserts the Administrative Law Judge (“ALJ”) erred in determining he was not disabled. For the reasons set forth below, the Commissioner's decision should 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 his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his 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. Secretary of Health & Human Services, 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 March 8, 1985, and was thirty-one years old at the time of the administrative hearing (Tr. 37). He completed high school and some college, and has worked as a track vehicle repairer, machinist apprentice, and fry cook (Tr. 25, 43, 196). The claimant alleges that he has been unable to work since an amended alleged onset date of October 23, 2014, due to reactive airway disease, right knee patellofemoral syndrome, left knee patellofemoral syndrome, right ankle strain, left ankle strain, degenerative disc disease lumbar spine, migraine headaches, post-traumatic stress disorder (PTSD), radiculopathy left lower extremity, and bilateral hearing loss (Tr. 195).

         Procedural History

         On December 13, 2015, the claimant protectively applied for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. His application was denied. ALJ B. D. Crutchfield conducted an administrative hearing and determined that the claimant was not disabled in a written opinion dated August 12, 2016 (Tr. 18-27). The Appeals Council denied review, so the ALJ's written opinion became the Commissioner's final decision for purposes of this appeal. See 20 C.F.R. § 404.981.

         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 less than the full range of light work, see 20 C.F.R. § 404.1567(b), meaning that he must avoid concentrated exposure to dust, fumes, odors and gases; can perform simple and some complex tasks (defined at the administrative hearing as semi-skilled) with routine supervision; he can adapt to a work environment and relate to others on a superficial work basis, but that he should limit public contact to occasional (Tr. 23). The ALJ concluded that, although the claimant could not return to his past relevant work, he was nevertheless not disabled because there was work he could perform, e. g., mail room clerk, assembler, and sorter (Tr. 25-26).

         Review

         The claimant contends that the ALJ erred by: (i) failing to properly account for the claimant's 100% disability rating from the Veteran's Administration (VA); (ii) failing to account for evidence that conflicted with the mental RFC findings in the opinion, including mischaracterizing opinion evidence; and (iii) failing to account for his nonsevere impairments in assessing his RFC. The undersigned Magistrate Judge finds the ALJ did make a number of errors at step four, and the decision of the Commissioner should therefore be reversed.

         The ALJ determined that the claimant had the severe impairments of asthma, anxiety, and cannabis dependence, as well as the nonsevere impairments of reactive airway disease, right and left knee patellofemoral syndrome, right and left ankle strain, degenerative disc disease of the lumbar spine, migraine headaches, PTSD, radiculopathy left lower extremity, and bilateral hearing loss (Tr. 21). At step two, she stated that she gave little weight to the VA disability rating, noting that such a finding is not binding on the Social Security Administration (Tr. 21). In February 2015, the claimant's combined disability rating through the VA was 100%, including PTSD, reactive airway disease, migraine headaches, degenerative disc disease of the lumbar spine with intervertebral disc disease, right and left knee and ankle impairments, and radiculopathy (Tr. 165-190, 444). Records from the VA indicate the claimant had concentration problems following his discharge from the Army described as cognitive-linguistic deficits characterized by decreased auditory attending skills, working memory for orally presented information, psychomotor/information processing speed and divided attention, explicit learning and delayed recall of verbal information, visuoconstruction skills, and planning and psychomotor speed (Tr. 268, 304-306). He further reported problems adjusting to ...


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