United States District Court, E.D. Oklahoma
JEFF W. WORTHEAN, Plaintiff,
COMMISSIONER of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
P. SHREDER, UNITED STATES MAGISTRATE JUDGE
claimant Jeff W. Worthean 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 the
Administrative Law Judge (“ALJ”) erred in
determining he was not disabled. For the reasons set forth
below, the Commissioner's decision should be REVERSED and
the case REMANDED 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[.]” 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 forty-five years old at the time of the
administrative hearing (Tr. 36). He completed the eleventh
grade, and has worked as a brick layer and sandblaster (Tr.
17, 181). The claimant alleges that he has been unable to
work since July 1, 2013, due to gout in his hands and feet,
pinched nerve in his back, numbness in legs, rheumatoid
arthritis, and spinal degeneration (Tr. 17, 180).
23, 2014, the claimant applied for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C.
§§ 401-434, and for supplemental security income
benefits under Title XVI of the Social Security Act, 42
U.S.C. §§ 1381-85. His applications were denied.
ALJ Lantz McClain held an administrative hearing and
determined that the claimant was not disabled in a written
opinion dated May 24, 2016 (Tr. 11-19). The Appeals Council
denied review; thus, the ALJ's written opinion is the
Commissioner's final decision 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(b) and 416.967(b), i. e., he
could lift/carry twenty pounds occasionally and ten pounds
frequently and stand/walk at least six hours in an eight-hour
workday, with no more than occasional stooping (Tr. 14). The
ALJ concluded that although the claimant could not return to
his past relevant work, he was nevertheless not disabled
because there was work in the regional and national economy
he could perform, i. e., arcade attendant and
parking lot attendant (Tr. 17-18).
claimant contends that the ALJ erred by: (i) failing to
account for all his impairments in formulating the RFC, and
(ii) failing to properly identify work he could perform at
step five. The undersigned Magistrate Judge agrees with the
claimant's contention that the ALJ failed to properly
assess his RFC, and the decision of the Commissioner should
therefore be reversed and the case remanded for further
found that the claimant had the severe impairments of
borderline obesity, degenerative disc disease lumbar spine,
and generalized polyarthralgias, as well as the nonsevere
impairment of Hepatitis C (Tr. 13-14). As to the
claimant's gout at step two, the ALJ made no explicit
finding as to severity, but instead asserted that it only
flared up at wide intervals and would not usually affect the
claimant's work, that proper treatment would mean it
caused fewer problems, and that when it did affect him,
normal sick leave of one day per month as provided by the
“usual schedule for sick leave” would accommodate
this (Tr. 13-14). The relevant medical evidence reveals that
the claimant complained of chronic low back pain and was
assessed in November 2013 with degenerative disc disease at
¶ 5/S1 and multilevel spondylosis, but that he moved his
extremities well and had a normal gait (Tr. 262-264). This
was further supported by an x-ray of the lumbosacral spine
perform in July 2013 (Tr. 307). In September 2014 the
claimant again assessed with chronic joint pain, most likely
osteoarthritis (Tr. 387). The claimant underwent a number of
injections to manage his back pain (Tr. 411-414, 444). A
February 2015 x-ray revealed spondylitic changes most
pronounced at ¶ 4-5 and L5-S1 (Tr. 479). The patient
reported that an injection on June 30, 2015 actually caused
him more pain, instead of decreasing it (Tr. 444). Treatment
notes from Advanced Pain Specialists of Tulsa record abnormal
musculoskeletal, back, and neurological findings, including
lumbar paraspinal muscular tenderness, decreased range of
motion of the back, and muscle spasm of the back (Tr. 419).
On October 19, 2019, the claimant underwent an MRI of the
lumbar spine, which revealed: at ¶ 3-4, mild
degenerative disc desiccation and disc space narrowing,
posterior shallow broad-based disc bulge, mild ligamentum
flavum hypertrophy and facet arthropathy, and mild narrowing
of the right neural foramina without ...