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Gordon v. Berryhill

United States District Court, E.D. Oklahoma

February 27, 2018

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, [1] Defendant.



         The claimant Thomas Roy Gordon requests judicial review of a denial of benefits by the Commissioner of the Social Security Administration (“Commissioner”) pursuant to 42 U.S.C. § 405(g). The claimant appeals the Commissioner's decision and asserts that the Administrative Law Judge (“ALJ”) erred in determining he was not disabled. For the reasons discussed below, the Commissioner's decision is REVERSED and REMANDED 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 on December 15, 1960, and was fifty-four years old at the time of the administrative hearing (Tr. 148). He has a high school education, some college, and has worked as a retail store manager, cashier, tractor operator, unit assembler, and industrial truck operator (Tr. 63, 173). The claimant alleges that he has been unable to work since October 1, 2012, due to diabetes, neuropathy, hand numbness, and high blood pressure (Tr. 172).

         Procedural History

         The claimant applied for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, on September 4, 2013 (Tr. 148-49). His application was denied. ALJ Doug Gabbard, II held an administrative hearing, and determined that the claimant was not disabled in a written opinion dated February 26, 2015 (Tr. 12-37). The Appeals Council denied review, so the ALJ's written opinion is 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 his decision at steps four and five of the sequential evaluation. He found that the claimant had the residual functional capacity (“RFC”) to perform light work as defined in 20 CFR § 404.1567(b) with occasional climbing, balancing, stooping, kneeling, crouching, and crawling, and never walking on uneven surfaces or pushing or pulling with his feet (Tr. 22). Additionally, the ALJ found the claimant must avoid even moderate exposure to dust, fumes, odors, and other pulmonary irritants, and have the ability to change positions every ten to fifteen minutes without leaving the workstation (Tr. 22). The ALJ concluded that the claimant was not disabled because he could return to his past relevant work as a cashier, and alternatively because there was work he could perform in the national economy, e. g., small product assembler and arcade attendant (Tr. 32-36).


         The claimant contends that: (i) the ALJ failed to properly analyze the medical opinions of treating physician Dr. Lewis and consultative examiner Dr. Javersak, and (ii) the Appeals Council failed to properly consider treating physician Dr. Farrow's medical opinion evidence. Because the ALJ's decision is not supported by substantial evidence in light of the evidence submitted to the Appeals Council, the decision of the Commissioner must be reversed and the case remanded to the ALJ for further proceedings.

         The ALJ found that the claimant had the severe impairments of diabetes, peripheral neuropathy, right knee osteoarthritis, and emphysema, and the non-severe impairments of obesity, hypertension, chest pain, hyperlipidemia, indigestion, constipation, dizziness, background retinopathy, fatigue, sleeping problems, hyperprolactinemia, headaches, and depressive disorder NOS (Tr. 14-21). He also found that the claimant's alleged gout and hand neuropathy were not medically determinable (Tr. 21). The medical evidence relevant to this appeal reveals that the claimant presented to Caring Hands Healthcare Center (“CHHC”) on September 20, 2013, and reported pain in his feet radiating to his knees, and dizziness, weakness, and blurred vision when he is exposed to heat (Tr. 236). Nurse practitioner Heather Johnston examined the claimant and found he had normal range of motion, muscle strength, and stability in all extremities with no edema or pain on inspection (Tr. 239). As to the claimant's gait, Ms. Johnston ...

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