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Tillery v. Berryhill

United States District Court, W.D. Oklahoma

April 16, 2019

KEVIN TILLERY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration denying Plaintiff's application for benefits under the Social Security Act. The Commissioner has answered and filed a transcript of the administrative record (hereinafter TR.). The parties have consented to jurisdiction over this matter by a United States magistrate judge pursuant to 28 U.S.C. § 636(c).

         The parties have briefed their positions, and the matter is now at issue. Based on the Court's review of the record and the issues presented, the Court REVERSES AND REMANDS the Commissioner's decision.

         I. PROCEDURAL BACKGROUND

         Initially and on reconsideration, the Social Security Administration denied Plaintiff's application for benefits. Following three administrative hearings, [1] an Administrative Law Judge (ALJ) issued a partially unfavorable decision, which deemed Plaintiff not disabled from October 1, 2010 through November 3, 2016. (TR. 15-30). The Appeals Council denied Plaintiff's request for review. (TR. 6-8). Thus, the decision of the ALJ became the final decision of the Commissioner and Plaintiff challenges the unfavorable portion of the decision.[2]

         II. THE ADMINISTRATIVE DECISION

         The ALJ followed the five-step sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. § 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since October 1, 2010, his alleged onset date. (TR. 17). At step two, the ALJ determined that Mr. Tillery had the following severe impairments: degenerative disc disease of the cervical spine, status post-surgery; hypertension; anxiety disorder; and major depressive disorder. (TR. 18). At step three, the ALJ found that Plaintiff's impairments did not meet or medically equal any of the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1 (TR. 18).

         At step four, the ALJ concluded that Mr. Tillery retained the residual functional capacity (RFC) to:

[P]erform light work as defined in 20 CFR 416.967(b) except he can lift/carry/push and pull 20 pounds occasionally and 10 pounds frequently; he can stand and/or walk for 6 out of 8 hours and sit for 6 out of 8 hours in an 8-hour workday. He can occasionally climb stairs and ramps as well as occasionally balance, kneel, crouch, crawl, and stoop. He can never climb ladders, ropes, and scaffolds. He can perform no overhead reaching with the bilateral upper extremities. He can perform simple tasks with routine supervision and is able to relate adequately with co-workers and supervisors for superficial work purposes. He is also able to adapt to work situations.

(TR. 19). Based on a finding that Mr. Tillery had no past relevant work, [3] the ALJ proceeded to step five and presented several limitations to a vocational expert (VE) to determine whether there were other jobs in the national economy Plaintiff could perform. (TR. 83). Given the limitations, the VE identified three jobs from the Dictionary of Occupational Titles. (TR. 83-84). The ALJ adopted the testimony of the VE and concluded that prior to November 4, 2016, Mr. Tillery was not disabled based on his ability to perform the identified jobs. (TR. 28-29). The ALJ further concluded that on November 4, 2016, Mr. Tillery turned 55 and his “age category” changed, rendering him disabled under Medical-Vocational Guidelines Rule 202.04 beginning that date. (TR 28-29).[4]

         III. STANDARD OF REVIEW

         This Court reviews the Commissioner's final decision “to determin[e] whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotation omitted).

         While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).

         IV. ISSUES PRESENTED

         On appeal, Plaintiff alleges the ALJ erred in her consideration of Mr. Tillery's right shoulder impairment and testicular cyst.

         V. PLAINTIFF'S RIGHT SHOULDER IMPAIRMENT

         Mr. Tillery alleges that the ALJ failed to account for limitations owing to pain and weakness in Plaintiff's right shoulder and muscle wasting in his right arm. (ECF No. 13:7-11). The Court disagrees.

         In the decision, the ALJ acknowledged an abundance of evidence concerning Plaintiff's right shoulder and arm impairment. (TR. 21-24). For example, the ALJ discussed:

• Plaintiff's complaints of right shoulder pain and weakness;
• Use of medication to treat the pain;
• Tenderness and decreased range of motion in Plaintiff's right shoulder;
• An MRI of Plaintiff's right shoulder which showed degenerative changes;
• Muscle-wasting in Plaintiff's right-sided biceps, triceps, and forearm; and
• Numbness and pain in Plaintiff's right arm.

(TR. 21-24). Ultimately, in evaluating the effect of Mr. Tillery's shoulder/arm impairment, the ALJ stated: “although [Plaintiff] may have some continued right extremity symptoms, the limitation of no overhead reaching is adequate to account for ...


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