United States District Court, E.D. Oklahoma
LISA M. WHISTLER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration,  Defendant.
OPINION AND ORDER
P. SHREDER, UNITED STATES MAGISTRATE JUDGE.
claimant Lisa M. Whistler 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 she was not disabled. For the reasons discussed
below, the Commissioner's decision is hereby REVERSED and
the case is 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. 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
Background The claimant was born on June 3, 1981,
and was thirty-four years old at the time of the most recent
administrative hearing (Tr. 108). She has a high school
education and vocational training in nursing, business
technology, and administration assistance, and has worked as
a cashier, retail manager, and apartment lessor (Tr. 129,
753). The claimant alleges she has been unable
to work since August 26, 2009, due mental conditions, chronic
pain, diabetes, and diabetic neuropathy (Tr. 128-29).
claimant applied for disability insurance benefits under
Title II of the Social Security Act, 42 U.S.C. §§
401-434, on November 18, 2010 (Tr. 108-11). Her application
was denied. ALJ Bernard Porter conducted an administrative
hearing and found that the claimant was not disabled in a
written opinion dated March 29, 2013 (Tr. 10-21). The Appeals
Council denied review, but this Court reversed the decision
of the Commissioner in Case No. CIV-13-388, and remanded the
case for further consideration of the claimant's mental
impairments (Tr. 598, 702). ALJ Donald Davis conducted a
second administrative hearing and determined the claimant was
not disabled in a written opinion dated September 11, 2015
(Tr. 598-615). The Appeals Council denied review, so the
ALJ's September 2015 written opinion is the final
decision of the Commissioner for purposes of this appeal.
See 20 C.F.R. § 404.981.
of the Administrative Law Judge
made his decision at step five of the sequential evaluation.
He found the claimant retained the residual functional
capacity (“RFC”) to perform less than the full
range of medium work, i. e., she could lift fifty
pounds occasionally and twenty-five pounds frequently, and
could stand, walk, and sit six hours in an eight-hour
workday. Additionally, the ALJ determined that the claimant
could perform simple tasks, adapt to a work environment, work
for two-hour intervals, have superficial interpersonal
contact to work performed, have routine supervision which was
simple, direct, and concrete, but could not have contact with
the general public, or engage in fast-paced assembly line
work (Tr. 607). The ALJ concluded that although the claimant
could not return to her past relevant work, she was
nevertheless not disabled because there was work in the
national economy that she could perform, i. e., hand
packer (Tr. 613-14).
claimant contends that the ALJ erred by: (i) ignoring
probative evidence related to her mental impairments, (ii)
failing to conduct a longitudinal assessment of the
functional limitations of her mental impairments, (iii)
failing to properly analyze the state reviewing physician
opinion regarding her mental RFC, and (iv) relying on
vocational expert (“VE”) testimony that was not
inclusive of all of her impairments. The Court agrees with
the claimant's third and fourth contentions, and the
decision of the Commissioner must therefore be reversed and
the case remanded to the ALJ for further proceedings.
found that the claimant had the severe impairments of
diabetes mellitus, gastritis, hernia, reflux esophagitis,
obesity, gall bladder issues, history of cancer, an affective
disorder, an anxiety disorder, posttraumatic stress disorder,
history of cannabis dependence and alcohol use (DAA),
borderline intellectual functioning, and impulse control
disorder (Tr. 600). The relevant medical evidence related to
the claimant's mental impairments reveals that providers
at the Mental Health and Substance Abuse Centers of Oklahoma
treated the claimant for bipolar disorder, depression,
anxiety, and posttraumatic stress disorder from December 2008
through April 2009 (Tr. 227-50). Beginning in September 2010,
and continuing through May 2015, providers at Carl Albert
Community Mental Health Center also treated the claimant for
bipolar disorder, depression, anxiety, and posttraumatic
stress disorder (Tr. 528-33, 561-83, 755-89).
January 4, 2010, Randy Crittenden, Ph.D., conducted a
consultative mental status examination (Tr. 399-405). He
noted the claimant's mood appeared profoundly sad, and
that her mood and affect were congruent and somewhat blunted
(Tr. 402). He also noted her immediate memory was intact, her
long term memory was good, and that she had an adequate fund
of verbal information (Tr. 402). As to her concentration, Dr.
Crittenden noted that although her calculation and
concentration were satisfactory on other tasks, she did have
some difficulty on serial sevens (Tr. 403). Regarding the
claimant's judgment, he noted she appeared to be at risk
for solving emergency situations in an impulsive manner (Tr.
403). Dr. Crittenden estimated the claimant's
intellectual quotient was eighty or higher (Tr. 403). He
diagnosed the claimant with alcohol dependence, sustained
partial remission; major depressive disorder, severe, without
psychotic features; posttraumatic stress disorder, chronic;
noncompliance with treatment; psychotic disorder ...