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Tubby v. Commissioner of Social Security Administration

United States District Court, E.D. Oklahoma

March 14, 2019

LACY JO TUBBY, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          REPORT AND RECOMMENDATION

          KIMBERLY E. WEST UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         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. . .” 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.[1]

         Judicial 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.

         Claimant's Background

         Claimant 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.

         Procedural History

         On 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.

         On June 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 remanded.

         On 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.

         On June 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. §§ 404.984, 416.1484.

         Decision of the Administrative Law Judge

         The ALJ 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 ...


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