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Grimes v. Berryhill

United States District Court, W.D. Oklahoma

February 15, 2018

PETER T. GRIMES, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          GARY M. URCELL, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant Commissioner denying his application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 1382. Defendant has answered the Complaint and filed the administrative record (hereinafter AR___), and the parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Commissioner's decision be reversed and remanded for further administrative proceedings.

         I. Administrative History and Final Agency Decision

         Plaintiff applied for disability benefits on August 7, 2012. AR 135-38. In his application, Plaintiff alleged he became disabled on July 27, 2012, due to degenerative lumbar spine - IVDS sciatic nerve dysfunction, tinnitus, bladder dysfunction, right lower extremities partial paralyzation, post lumbar surgery with IVDS, and sleep apnea. AR 135, 363. The Social Security Administration denied Plaintiff's application on December 5, 2012, see AR 67-68, and on reconsideration on May 8, 2013. AR 69, 70-80.

         Plaintiff appeared without representation and testified at an administrative hearing conducted on October 30, 2014, before an Administrative Law Judge (ALJ). AR 32-59. On November 6, 2015, the ALJ issued a decision in which she found Plaintiff was not disabled within the meaning of the Social Security Act. AR 13-27. Following the agency's well-established sequential evaluation procedure, the ALJ found at the first step that Plaintiff had not engaged in substantial gainful activity since July 27, 2012. AR 18. At the second step, the ALJ found Plaintiff had severe impairments of status post bilateral L5-S1 laminectomy, discectomy, and foraminotomy, diabetes mellitus, diabetic neuropathy, right shoulder degenerative joint disease, and obesity. Id. At the third step, the ALJ found these impairments were not per se disabling as Plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of a listed impairment. AR 19.

         At step four, the ALJ found Plaintiff had the residual functional capacity (RFC) to perform sedentary work except he can lift, carry, push and pull ten pounds occasionally and less than ten pounds frequently, and stand and walk for two hours and sit for six hours of an eight hour workday. AR 20. Additionally, Plaintiff cannot climb ladders, ropes, or scaffold, cannot balance, can occasionally climb stairs and ramps and occasionally kneel, crouch, crawl, and stoop. Id. Finally, Plaintiff cannot overhead reach with his right upper extremity and cannot work around unprotected heights or around hazardous unprotected machinery. Id.

         After determining Plaintiff could not perform his past relevant work, the ALJ reached the final step of the required sequential analysis. AR 25. At step five, relying on the testimony of a vocational expert (VE) who testified at the administrative hearing, the ALJ found Plaintiff was capable of performing jobs that existed in the national economy, including jobs as a table worker, callout operator, and charge account clerk. AR 26. Based on these findings, the ALJ concluded Plaintiff had not been under a disability, as defined by the Social Security Act, from July 27, 2012 through the date of the decision. AR 26-27.

         The Appeals Council denied Plaintiff's request for review, and therefore the ALJ's decision is the final decision of the Commissioner. See 20 C.F.R. § 404.981; Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009).

         II. Issue Raised

         Plaintiff raises two issues on appeal. First, Plaintiff contends the ALJ failed to consider that Plaintiff was in a borderline age situation when she made her decision. Plaintiff's Opening Brief (Doc. # 16) at 6-11. Second, Plaintiff argues the ALJ failed to adequately evaluate Plaintiff's disability rating from the Veteran's Administration. Doc. #16 at 11-14.

         III. General Legal Standards Guiding Judicial Review

         The Court must determine whether the Commissioner's decision is 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); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation and quotations omitted). The “determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record.” Wall, 561 F.3d at 1052 (citations, quotations, and brackets omitted).

         The Social Security Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401 et seq. A disability is an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C. § 1382c(a)(3)(A); see 20 C.F.R. § 404.1509 (duration requirement). Both the “impairment” and the “inability” must be expected to last not less than twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).

         The agency follows a five-step sequential evaluation procedure in resolving the claims of disability applicants. See 20 C.F.R. § 404.1520(a)(4), (b)-(g). “If the claimant is not considered disabled at step three, but has satisfied her burden of establishing a prima facie case of disability under steps one, two, and four, the burden shifts to the Commissioner to show the claimant has the [RFC] to perform other work in the national economy in view of her age, education, and work experience.” Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. ...


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