United States District Court, E.D. Oklahoma
HARVEY D. POTTER, Plaintiff,
COMMISSIONER of the Social Security Administration, Defendant.
OPINION AND ORDER
P. SHREDER UNITED STATES MAGISTRATE JUDGE
claimant Harvey D. Potter 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 that the
Administrative Law Judge (“ALJ”) erred in
determining he was not disabled. For the reasons set forth
below, the decision of the Commissioner 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 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[.]” 42 U.S.C. § 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
claimant was born on August 10, 1971, and was forty-three
years old at the time of the administrative hearing (Tr. 168,
177). He has a high school equivalent education and
vocational training as an emergency medical technician, and
has worked as a first aid attendant, paramedic/emergency
medical technician, fast food cook, and building maintenance
worker (Tr. 33, 218). The claimant alleges he has been unable
to work since August 22, 2006, due to spinal nerve damage,
partial right leg paralysis, a back injury, diabetes, nerve
damage, and bipolar disorder (Tr. 168, 177, 217).
21, 2012, the claimant applied for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C.
§§ 401-434, and he applied for supplemental
security income benefits under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381-85 on May 22, 2012
(Tr. 168-78). His applications were denied. ALJ Jodi Levine
held an administrative hearing and determined the claimant
was not disabled in a written decision dated November 28,
2014 (Tr. 21-34). The Appeals Council denied review, so the
ALJ's written decision represents the final decision of
the Commissioner for purposes of this appeal. See 20
C.F.R. §§ 404.981, 416.1481
of the Administrative Law Judge
made her decision at step four of the sequential evaluation.
She found that the claimant retained the residual functional
capacity (“RFC”) to perform light work as defined
in 20 C.F.R. § 416.967(b), and could understand,
remember, and carry out simple and detailed instructions (Tr.
29). The ALJ concluded that the claimant was not disabled
because he could return to his past relevant work as a first
aid attendant (Tr. 33-34).
claimant contends that the ALJ erred by failing to properly:
(i) account for his moderate difficulty in maintaining
concentration, persistence, or pace; (ii) consider his severe
obesity and non-severe lumbar spondylosis and in formulating
his RFC; and (iii) analyze the state agency
psychologists' opinion as to his moderate limitation in
the ability to maintain social functioning. The Court agrees
that the ALJ erred in her analysis of the claimant's
non-severe spondylosis at step four.
determined that the claimant had the severe impairments of
diabetes mellitus, obesity, and an affective disorder, as
well as the non-severe impairment of spondylosis (Tr. 26).
The relevant medical records reveal the claimant was
incarcerated between 2006 and 2012. At a new intake physical
examination on May 23, 2006, the claimant reported chronic
low back pain from an injury he sustained in 1999 (Tr. 572).
A lumbar spine x-ray taken that day revealed the possible
presence of a pars defect at ¶ 5-S1, slight loss of
alignment with slight subluxation of L5 on L4, and ...