United States District Court, W.D. Oklahoma
SHELLY A. FULKERSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE.
Shelly A. Fulkerson brings this action pursuant to 42 U.S.C.
§ 405(g) for judicial review of the final decision of
the Commissioner of the Social Security Administration
(“SSA”) denying Plaintiff's application for
disability insurance benefits (“DIB”) under Title
II of the Social Security Act, 42 U.S.C. §§
401-434. The parties have consented to the jurisdiction of a
United States Magistrate Judge. Upon review of the
administrative record (Doc. No. 11, hereinafter
“R.”),  and the arguments and authorities
submitted by the parties, the Court reverses the
Commissioner's decision and remands the case for further
protectively filed her DIB application on October 29, 2012,
alleging a disability onset date of October 16, 2011. R. 21,
160-61, 213. Following denial of her application initially
and on reconsideration, a hearing was held before an
Administrative Law Judge (“ALJ”) on December 4,
2014. R. 21, 36-59. In addition to Plaintiff, a vocational
expert (“VE”) testified at the hearing.
See R. 21, 36, 39, 49-56. The ALJ issued an
unfavorable decision on March 2, 2015. R. 21-31. The SSA
Appeals Council denied Plaintiff's request for review,
making the ALJ's unfavorable decision the final decision
of the Commissioner. R. 1-4; see also 20 C.F.R.
§ 404.981. This action for judicial review followed.
relevant here, a person is “disabled” within the
meaning of the Social Security Act if he or she is
“unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last
for a continuous period of not less than twelve
months.” 42 U.S.C. § 1382c(a)(3)(A). The
Commissioner uses a five-step sequential evaluation process
to determine entitlement to disability benefits. See Wall
v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009); 20
C.F.R. § 404.1520. At step one, the ALJ found that
Plaintiff had not engaged in substantial gainful activity
since October 16, 2011, the alleged onset date. R. 23. At
step two, the ALJ determined that Plaintiff had the severe
impairments of: degenerative arthritis of the left knee;
status post closed fracture of the left ankle and heel (with
residual pain); and joint disorder of the right wrist. R.
23-24. At step three, the ALJ determined that Plaintiff's
impairments did not meet or equal any of the presumptively
disabling impairments listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1. R. 25.
next assessed Plaintiff's residual functional capacity
(“RFC”) based on all of her medically
determinable impairments. R. 25-29; see 20 C.F.R.
§ 404.1520(a)(4)(iv). The ALJ found that Plaintiff has
the RFC to perform light work, subject to the following
nonexertional limitations: “[Plaintiff] can only
frequently handle and finger.” R. 25. In light of this
finding and the testimony of a VE, the ALJ determined that
Plaintiff was capable of performing her past relevant work as
a secretary. R. 29-30.
alternatively considered what the result would be if it were
assumed that Plaintiff could not return to her past relevant
work and the ALJ proceeded to step five of the sequential
evaluation. R. 30-31. The ALJ determined that, in view of
Plaintiff's age, education, work experience, and RFC,
there were jobs existing in significant numbers in the
national economy that Plaintiff could perform. Taking into
consideration the hearing testimony of the VE regarding the
degree of erosion to the unskilled light occupational base
caused by Plaintiff's additional limitations, the ALJ
concluded that Plaintiff could perform light unskilled
occupations such as office helper, laundry folder, and
assembler of small products II, all of which offer jobs that
exist in significant numbers in the national economy. R.
30-31. The ALJ ultimately found that Plaintiff had not been
under a disability, as defined in the Social Security Act,
from October 16, 2011, through the date of the decision. R.
review of the Commissioner's final decision is limited to
determining whether factual findings are supported by
substantial evidence in the record as a whole and whether
correct legal standards were applied. Poppa v.
Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009).
“Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Doyal v. Barnhart, 331 F.3d 758,
760 (10th Cir. 2003) (internal quotation marks omitted).
“A decision is not based on substantial evidence if it
is overwhelmed by other evidence in the record or if there is
a mere scintilla of evidence supporting it.” Branum
v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004)
(internal quotation marks omitted). The court
“meticulously examine[s] the record as a whole, ”
including any evidence “that may undercut or detract
from the ALJ's findings, ” “to determine if
the substantiality test has been met.” Wall,
561 F.3d at 1052 (internal quotation marks omitted). While a
reviewing court considers whether the Commissioner followed
applicable rules of law in weighing particular types of
evidence in disability cases, the court does not reweigh the
evidence or substitute its own judgment for that of the
Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272
(10th Cir. 2008).
appeal, Plaintiff challenges (1) the ALJ's treatment of
nonsevere impairments in the RFC assessment, and (2) the
ALJ's evaluation of the treating-source opinion. The
Court finds that the latter claim of error requires reversal.
The ALJ Properly Considered Nonsevere Impairments in the RFC
assessing a claimant's RFC, an ALJ must “consider
the combined effect of all medically determinable
impairments, whether severe or not.” Wells v.
Colvin, 727 F.3d 1061, 1069 (10th Cir. 2013);
see 20 C.F.R. § 404.1545(a)(2). At step two of
the sequential analysis, the ALJ found both severe and
nonsevere impairments. See R. 23-24. Specifically,
the ALJ determined that Plaintiff's nonsevere impairments
included “major depressive disorder (recurrent) and
anxiety disorder (mild).” R. 24. Plaintiff asserts
that, in contravention to regulatory directive, the ALJ
failed to take these nonsevere medically ...