United States District Court, W.D. Oklahoma
PETER T. GRIMES, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
M. URCELL, UNITED STATES MAGISTRATE JUDGE.
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.
Administrative History and Final Agency Decision
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.
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.
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.
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.
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.
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
General Legal Standards Guiding Judicial Review
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
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).
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. ...