United States District Court, W.D. Oklahoma
MEMORANDUM OPINION AND ORDER
T. ERWIN UNITED STATES MAGISTRATE JUDGE.
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).
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.
and on reconsideration, the Social Security Administration
denied Plaintiff's application for benefits. Following
three administrative hearings,  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.
THE ADMINISTRATIVE DECISION
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).
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
(TR. 19). Based on a finding that Mr. Tillery had no past
relevant work,  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).
STANDARD OF REVIEW
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).
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).
appeal, Plaintiff alleges the ALJ erred in her consideration
of Mr. Tillery's right shoulder impairment and testicular
PLAINTIFF'S RIGHT SHOULDER IMPAIRMENT
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.
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
• 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
• 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 ...