United States District Court, N.D. Oklahoma
OPINION AND ORDER
F. JAYNE, MAGISTRATE JUDGE
Lisa B.-G. seeks judicial review of the decision of the
Commissioner of the Social Security Administration denying
her claim for disability insurance benefits under Title XVI
of the Social Security Act (“Act”), 42 U.S.C.
§§ 416(i), 423, and 1382c(a)(3). In accordance with
28 U.S.C. § 636(c)(1) & (3), the parties have
consented to proceed before a United States Magistrate Judge.
reasons explained below, the Court reverses the
Commissioner's decision denying benefits and remands for
further proceedings. Any appeal of this decision will be
directly to the Tenth Circuit Court of Appeals.
Standard of Review
reviewing a decision of the Commissioner, the Court is
limited to determining whether the Commissioner applied the
correct legal standards and whether the decision is supported
by substantial evidence. See Grogan v. Barnhart, 399
F.3d 1257, 1261 (10th Cir. 2005). “Substantial evidence
is more than a mere scintilla and is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” Id. (citing Glass v.
Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994)). A
decision “is not based on substantial evidence if it is
overwhelmed by other evidence in the record or if there is a
mere scintilla of evidence supporting it.” Hamlin
v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004)
(quotations omitted). The Court must “meticulously
examine the record as a whole, including anything that may
undercut or detract from the ALJ's findings in order to
determine if the substantiality test has been met.”
Grogan, 399 F.3d at 1261 (citing Washington v.
Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). The Court
may neither re-weigh the evidence nor substitute its judgment
for that of the Commissioner. See Hackett v.
Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Even if
the Court might have reached a different conclusion, the
Commissioner's decision stands so long as it is supported
by substantial evidence. See White v. Barnhart, 287
F.3d 903, 908 (10th Cir. 2002).
Procedural History and the ALJ's Decision
then a 29-year-old female, protectively applied for Title XVI
benefits on August 29, 2011, alleging a disability onset date
of August 29, 2011. R. 401-410. Plaintiff claimed that she
was unable to work due to disorders including a kidney
condition, bipolar disorder, problems with her right leg, and
memory loss. R. 462. Plaintiff's claim for benefits was
denied initially on January 25, 2012, and on reconsideration
on April 4, 2012. R. 158-161; 165-167. Plaintiff then
requested a hearing before an Administrative Law Judge
conducted a total of four hearings in this case. The first
hearing was held on January 24, 2013. R. 109-124. After
hearing testimony that Plaintiff lost consciousness as a
result of a motorcycle wreck in 2008, the ALJ sent Plaintiff
for a consultative mental examination. The ALJ suspected
Plaintiff may have a cognitive or organic brain disorder
causing cognition loss which could reduce her ability to
perform mental tasks. R. 122-123.
second hearing was held on September 4, 2013, and ten
additional medical exhibits were submitted as evidence. R.
82. Plaintiff testified at length about problems from side
effects from her various medications during this hearing. For
example, the medications Myfortic for her kidney disorder
caused muscle pain, nausea and vomiting, stomach cramps,
headaches, and infections;Flexeril, a muscle relaxer, made
Plaintiff feel extremely tired; Seroquel, to treat bi-polar
depression, made Plaintiff sleep for long periods; and
Wellbutrin, to treat depression, made Plaintiff feel
“edgy, ” which caused her doctors to prescribe an
anxiety medication. Plaintiff testified the primary problems
preventing her from working are her kidney disorder,
suppressed immune system, and side effects from medication.
Plaintiff stated she is in bed or on the couch up to 15 days
per month due to her condition. R. 94-95. The ALJ decided to
send interrogatories to a medical expert, Alexander B. White,
M.D., FACP, FACC,  to better understand IgA
Nephrology prior to making a decision in
Plaintiff's case. R. 107. After reviewing Dr. White's
interrogatory responses, Plaintiff's counsel requested a
hearing was held on July 2, 2014, at which Dr. White appeared
by telephone and provided testimony. R. 61-79. Dr. White
testified that Plaintiff's creatinine level was high at
1.65. Dr. White testified that Plaintiff has a compromised
immune system, she should be closely followed by her treating
nephrologist, and she should avoid people with infections. He
further testified that she would have a number of side
effects from these medications that could cause her to miss
more than one day per month of work and/or need unscheduled
breaks. R. 70-76.
September 26, 2014, the ALJ issued a decision denying
Plaintiff's claim, finding that Plaintiff could return to
her past relevant work (“9/26/14 Decision”). R.
129-149. In the 9/26/14 Decision, the ALJ afforded Dr.
White's opinion “great weight, ” but did not
discuss Dr. White's testimony that Plaintiff might be
further limited because she likely would need unscheduled
breaks and miss more than one day of work per month. The ALJ
explained that he afforded great weight to Dr. White's
interrogatory opinion, which Dr. White affirmed through
testimony at the hearing, because “Dr. White had an
opportunity to review the evidence in its entirety and his
opinion is consistent with treatment notes and testing
results.” R. 139. Plaintiff requested review by the
Appeals Council, and the Appeals Council remanded the case
with several instructions to the ALJ. R. 152-153. In its
findings, the Appeals Council noted that, although Dr. White
testified that Plaintiff's symptoms and medication side
effects could cause her to miss one or more days of work per
month and possibly require unscheduled breaks, the ALJ failed
to “evaluate these comments or include any
corresponding limitations in [Plaintiff's] residual
functional capacity.” R. 152.
held a fourth hearing on January 25, 2017, and twelve new
exhibits were added to the record. R. 41. Plaintiff testified
that she had not obtained her GED and admitted smoking
marijuana once a month. R. 46. Plaintiff testified to no
major changes in her condition or medications since the
September 26, 2014 hearing; however, Plaintiff did admit to
having “a little bit better days.” R. 49-50. The
vocational expert (“VE”) questioned Plaintiff
about her past relevant work, determining that only
Plaintiff's past work as a maid qualified as past
relevant work. R. 55.
posed three hypotheticals to the VE, including the light
exertional hypothetical ultimately adopted as Plaintiff's
RFC. R. 56-58. The VE testified that Plaintiff could not
return to her past relevant work, but other light work
existed in the national economy that she could perform. R.
57. Plaintiff's attorney posed an additional hypothetical
to the VE, which added the need for unscheduled work breaks
to the first two hypotheticals posed by the ALJ and asked how
that would affect the jobs found at step five. R. 59. The VE
testified that an extra unscheduled break as little as ten
minutes would require a special accommodation that is not
normally afforded to everyone on the workforce. Id.
March 13, 2017, the ALJ issued a decision following remand,
again denying benefits and finding Plaintiff not disabled
because she was able to perform other work that existed in
significant numbers in the national economy (“3/13/17
Decision”). R. 15-30. In the 3/13/17 Decision, the
decision currently on appeal, the ALJ found that Plaintiff
suffered the severe impairments of IgA Nephropathy; chronic
kidney disease; bilateral heel spurs; possible internal
derangement of the right knee; obesity; a bipolar disorder;
anxiety disorder; and cannabis abuse. R. 17. Plaintiff's
non-severe impairments were cervicalgia, chronic low back
pain, and asthma, while ...