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Worthean v. Commissioner of Social Security Administration

United States District Court, E.D. Oklahoma

February 28, 2019

JEFF W. WORTHEAN, Plaintiff,
v.
COMMISSIONER of the Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          STEVEN P. SHREDER, UNITED STATES MAGISTRATE JUDGE

         The 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.

         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.[1]

         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 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).

         Procedural History

         On June 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, 416.1481.

         Decision of the Administrative Law Judge

         The ALJ 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).

         Review

         The 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 proceedings.

         The ALJ 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 ...


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