United States District Court, E.D. Oklahoma
OPINION AND ORDER
P. SHREDER UNITED STATES MAGISTRATE JUDGE.
claimant Charles W. Hudson, Jr. 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 that the
Administrative Law Judge (“ALJ”) erred in
determining that he was not disabled. For the reasons
discussed below, the Commissioner's should be REVERSED
and the case REMANDED to the ALJ 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 fifty years old at the time of the most recent
administrative hearing (Tr. 1333). He has an eleventh grade
education and has worked as an oil field laborer and gas
welder (Tr. 1342-43). The claimant alleges he has been unable
to work since January 22, 2004, due to heart attacks, a head
injury, sleep apnea, high blood pressure, high cholesterol,
congestive heart failure, three brain surgeries, and blocked
arteries (Tr. 150).
26, 2007, the claimant applied for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C.
§§ 401-434 (Tr. 131-35). His application was
denied. ALJ Osly F. Deramus conducted an administrative
hearing and determined that the claimant was not disabled in
a written opinion dated September 21, 2009 (Tr. 16-26). The
Appeals Council denied review, but this Court reversed the
decision of the Commissioner in No. CIV-10-363-FHS-SPS and
remanded to the ALJ with instructions to properly consider
all the medical evidence in the record (Tr.
1136-1148). ALJ Doug Gabbard, II conducted a second
administrative hearing and determined that the claimant was
not disabled in a written opinion dated December 7, 2012 (Tr.
1075-1094). The Appeals Council denied review, but this Court
reversed the decision of the Commissioner in No.
CIV-13-181-FHS-SPS and remanded to the ALJ with instructions
to properly consider the claimant's GAF score and
nonsevere impairments (Tr. 1351-61). ALJ Kim D. Parrish
conducted a third administrative hearing and again determined
that the claimant was not disabled in a written opinion dated
July 29, 2016 (Tr. 1298-1320). The Appeals Council denied
review, so the ALJ's July 29, 2016, 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 sedentary work as
defined in 20 CFR § 404.1567(a) with occasional
stooping, kneeling, and crouching and no exposure to
unprotected heights or dangerous machinery (Tr. 1310). The
ALJ also imposed the psychologically-based limitations of
understanding, remembering, and carrying out simple, routine,
repetitive tasks with occasional interaction with the public,
coworkers, and supervisors (Tr. 1310). The ALJ concluded that
although the claimant could not return to his past relevant
work, he was nevertheless not disabled because there was work
he could perform in the national economy, i. e.,
addresser, table worker, and sorter (Tr. 1318-19).
claimant contends that the ALJ erred by failing to properly:
(i) consider his nonsevere impairments at step four; (ii)
evaluate the opinions of treating physician Dr. O'Neill
and consultative examiner Dr. Bayne, (iii) consider his
Global Assessment of Functioning (“GAF”) score of
fifty, (iv) consider whether he had a justifiable excuse for
noncompliance with treatment, and (v) evaluate the
materiality of his substance abuse. The Court agrees that the
ALJ did not properly consider the claimant's nonsevere
impairments at step four, and the decision of the
Commissioner must therefore be reversed and the case remanded
for further proceedings.
found that, prior to the date last insured of June 30, 2008,
the claimant had the severe impairments of a seizure
disorder, ischemic heart disease, asthma, and affective
disorder, as well as the nonsevere impairments of sleep
apnea; high frequency sensorineural hearing loss, left worse
than right; hypertension; hyperlipidemia; vertigo; restless
leg syndrome; shortness of breath; shaking in his hands;
history of abdominal pain status post cholecystitis and H
pylori; possible diverticulitis; and amphetamine abuse (Tr.
1301-07). The relevant medical evidence reveals that the
claimant began experiencing seizure activity in December 2007
(Tr. 278). On January 9, 2008, Dr. Michael Tribbey, M.D.,
from The Medical Neurologists, Inc., wrote that on secondary
review of an EEG, “there [are] some subtle changes in
the left parietal and posterior temporal region of the brain,
which suggest an area of previous ...