United States District Court, E.D. Oklahoma
TERRY G. LOPER, Plaintiff,
COMMISSIONER of the Social Security Administration, Defendant.
OPINION AND ORDER
P. SHREDER UNITED STATES MAGISTRATE JUDGE
claimant Terry G. Loper 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 discussed
below, the Commissioner's decision is hereby AFFIRMED.
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[.]” 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
claimant was born on January 8, 1961, and was fifty-three
years old at the time of the most recent administrative
hearing (Tr. 120, 741). He has a high school education,
attended college two years, and has worked as a unit operator
(Tr. 734, 743). The claimant alleges that he has been unable
to work since July 28, 2004, due to a neck injury and fusion
at ¶ 5-7, vertigo, and muscle spasms (Tr. 145, 182).
December 30, 2008, the claimant applied for disability
insurance benefits under Title II of the Social Security Act,
42 U.S.C. §§ 401-434. His application was denied.
ALJ Trace Baldwin conducted an administrative hearing and
determined that the claimant was not disabled in a written
opinion dated August 19, 2010 (Tr. 10-18). The Appeals
Council denied review, but this Court reversed the decision
of the Commissioner in Case No. CIV-12-137-SPS, and remanded
the case for further consideration of the claimant's
vertigo and upper extremity numbness (Tr. 772-81). ALJ James
Bentley conducted a second administrative hearing and
determined that the claimant was not disabled in a written
opinion dated November 3, 2014 (Tr. 689-713). The Appeals
Council assumed jurisdiction and issued an opinion on July
14, 2016, that adopted the ALJ's November 2014 decision
(including the denial of benefits), but revised it to make
technical corrections (Tr. 667-70, 878-81). Thus, the Appeals
Council's July 2016 decision 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 that the claimant had the residual functional
capacity (“RFC”) to perform light work as defined
in 20 C.F.R. §§ 404.1567(a), 416.967(a), with
frequent, but not constant, handling and fingering
bilaterally; occasional balancing, stooping, kneeling, and
crouching; never crawling, climbing ropes, ladders, or
scaffolds, or performing overhead work; and avoiding
unprotected heights and dangerous moving machinery (Tr. 693).
Additionally, the ALJ determined that the claimant required a
sit/stand option, defined as a temporary change in position
from sitting to standing and vice versa, for the purposes of
comfort, with no more than one change in position every
twenty minutes, and without leaving the work area so as not
to diminish pace or production (Tr. 693). The ALJ then
concluded that although the claimant could not return to his
past relevant work, he was nevertheless not disabled because
there was work he could perform in the national economy,
i. e., garment bagger, counter clerk, and garment
sorter (Tr. 711-13).
claimant contends that the ALJ erred by failing to properly:
(i) evaluate the opinions of treating physician, Dr. Archana
Barve; and (ii) assess his credibility. The Court finds the
claimant's contentions unpersuasive for the following
found that the claimant had the severe impairments of
degenerative disc disease of the cervical spine status post
fusion at the C5-6 and C6-7 levels, vertigo, and carpal
tunnel syndrome (Tr. 691). The relevant medical records
reveal that the claimant sustained an injury to his neck at
work on December 11, 2003 (Tr. 320). After conservative
treatment failed, he underwent an anterior cervical disc
fusion of C5-7 on July 29, 2004 (Tr. 245, 281-82). At a
follow-up appointment with Dr. Jeffrey Nees on November 16,
2004, the claimant reported that his condition had not
significantly changed from his pre-operative status (Tr.
240). Dr. Nees stated the claimant “looked good
radiographically, but was not clinically doing as well as
expected, ” and prescribed a TENS unit (Tr. 240). On
January 17, 2005, Dr. Nees noted the claimant should be doing
well by all objective measures, but ...