United States District Court, E.D. Oklahoma
REPORT AND RECOMMENDATION
KIMBERLY E. WEST UNITED STATES MAGISTRATE JUDGE
Lacy Jo Tubby (the “Claimant”) requests judicial
review of the decision of the Commissioner of the Social
Security Administration (the “Commissioner”)
denying Claimant's application for disability benefits
under the Social Security Act. Claimant appeals the decision
of the Administrative Law Judge (“ALJ”) and
asserts that the Commissioner erred because the ALJ
incorrectly determined that Claimant was not disabled. For
the reasons discussed below, it is the recommendation of the
undersigned that the Commissioner's decision 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. . .” 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.
review of the Commissioner's determination is limited in
scope by 42 U.S.C. § 405(g). This Court's review is
limited to two inquiries: first, whether the decision was
supported by substantial evidence; and, second, whether the
correct legal standards were applied. Hawkins v.
Chater, 113 F.3d 1162, 1164 (10th Cir. 1997)(citation
omitted). The term “substantial evidence” has
been interpreted by the United States Supreme Court to
require “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)). The court may not re-weigh the evidence nor
substitute its discretion for that of the agency. Casias
v. Secretary of Health & Human Servs., 933 F.2d 799,
800 (10th Cir. 1991). Nevertheless, the court must review the
record as a whole, and the “substantiality of the
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.
was 38 years old at the time of the ALJ's latest
decision. Claimant completed her high school education.
Claimant has worked in the past as a factory
work/packing/quality control. Claimant alleges an inability
to work beginning November 22, 2005 due to limitations
resulting from back problems and depression.
March 3, 2006, Claimant protectively filed for disability
insurance benefits under Title II (42 U.S.C. § 401,
et seq.) of the Social Security Act. Claimant's
application was denied initially and upon reconsideration. On
March 25, 2008, Administrative Law Judge (“ALJ”)
Gene M. Kelly conducted an administrative hearing. On October
10, 2008, the ALJ issued an unfavorable decision. On February
11, 2009, the Appeals Council denied review. On September 13,
2010, this Court reversed the decision and remanded the case.
9, 2011, ALJ Osly Deramus conducted a hearing on remand. He
also issued an unfavorable decision on August 11, 2011.
Again, the decision was reversed by this Court and the case
January 23, 2014, ALJ Doug Gabbard conducted a third hearing.
He issued an unfavorable decision on April 18, 2014. It, too,
was reversed on appeal to this Court on September 29, 2015
and the case was once again remanded.
21, 2016 and April 18, 2017, the fourth and fifth hearings
were held, respectively, before ALJ Christopher Hunt. An
unfavorable decision was entered on August 25, 2017. Claimant
took a direct appeal to this Court. 20 C.F.R. §§
of the Administrative Law Judge
made his decision at step five of the sequential evaluation.
He determined that while Claimant suffered from severe
impairments, she retained the residual functional capacity