United States District Court, W.D. Oklahoma
ROBERT L. AVERY, Plaintiff,
ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
M. PURCELL UNITEDSTATES MAGISTRATE JUDGE.
seeks judicial review pursuant to 42 U.S.C. § 405(g) of
Defendant Commissioner's decision denying his application
for disability insurance benefits (DIB). Defendant has
answered the Complaint and filed the administrative record
(hereinafter AR__). The parties have briefed the issues. The
matter has been referred to the undersigned Magistrate Judge
for initial proceedings consistent with 28 U.S.C. §
636(b)(1)(B). For the following reasons, it is recommended
that the Commissioner's decision be reversed and remanded
for further proceedings consistent with this Report and
Administrative History and Final Agency Decision
filed his application for DIB on December 16, 2015, alleging
disability beginning December 11, 2015. AR 36. The Social
Security Administration denied his application initially and
appeared with his representative and testified at a video
administrative hearing on August 8, 2017, before an
Administrative Law Judge (“ALJ”). Id. at
50-72. A vocational expert (“VE”) also testified
at the hearing. Id. at 67-71. The ALJ issued a
decision in which he found Plaintiff was not disabled within
the meaning of the Social Security Act. Id. at
the agency's well-established sequential evaluation
procedure, the ALJ found at step one that Plaintiff had not
engaged in substantial gainful activity since his alleged
onset date. Id. at 38. At the second step, the ALJ
found Plaintiff had one severe impairment: degenerative disc
disease of the back, post-surgery. Id.
third step, the ALJ determined Plaintiff's spinal
impairment did not meet or equal one of the presumptively
disabling impairments listed at 20 C.F.R. Pt. 404, Subpt. P,
App. 1. The ALJ considered the Listing at 1.04, Disorders
of the Spine, and stated Plaintiff's spinal
impairment did not meet or medically equal that Listing.
Id. at 39.
four, the ALJ determined Plaintiff had the following residual
functional capacity (“RFC”):
[T]he claimant has the residual functional capacity to
perform light work . . . except he is limited to occasional
climbing, balancing, and stooping. He must avoid walking on
uneven surfaces. He must be allowed to alternate between
sitting and standing every 20-30 minutes throughout the
workday for the purpose of changing positions, but without
leaving the workstation.
on the VE's testimony, the ALJ found Plaintiff could not
perform his past relevant work as concrete truck driver or
dump truck driver, jobs that require the ability to work at
the medium exertional level. Id. at 43.
five, the ALJ again relied on the VE's testimony and
concluded Plaintiff's RFC would allow him to perform jobs
existing in significant numbers in the national economy
including small products assembler and inspector/packer.
Id. at 44. The VE testified that the numbers of both
jobs would be reduced by 50% based on the required sit/stand
option. Nevertheless, the ALJ determined these jobs
represented a “significant number” of jobs
available in the national economy. Based on this finding, the
ALJ concluded Plaintiff had not been under a disability, as
defined by the Social Security Act, since December 11, 2015,
through the date of the decision. Id. at 44.
presented additional evidence to the Appeals Council, but the
Appeals Council denied Plaintiff's request for review. AR
1-6. Therefore, the ALJ's decision is the final decision
of the Commissioner. See 20 C.F.R. § 404.981;
Wall v. Astrue, 561 F.3d 1048, 1051 (10th
raises four issues.: (1) the Appeals Council erred by
declining to review the evidence submitted after the
ALJ's decision; (2) the ALJ erred in failing to find
Plaintiff's mental impairments to be medically
determinable; (3) the ALJ erred in failing to reconcile the
internal inconsistencies in the State Agency physicians'
reports; and (4) the ALJ erred, as a matter of law, in
failing to discuss uncontroverted, significantly probative
evidence that conflicted with his findings and tainted the
evaluation of symptoms and the resulting RFC. Plaintiff's
Opening Brief, (Doc. No. 20).
General Legal Standards Guiding Judicial Review
Court must determine whether the Commissioner's decision
is supported by substantial evidence in the record and
whether the Commissioner applied the correct legal standards.
Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010); Doyal v. Barnhart, 331 F.3d 758, 760 (10th
Cir. 2003). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion. It requires more than a scintilla, but
less than a preponderance.” Lax v. Astrue, 489
F.3d 1080, 1084 (10th Cir. 2007) (citations and quotations
omitted). The “determination of whether the ALJ's
ruling is supported by substantial evidence must be based
upon the record taken as a whole. Consequently, [the Court
must] remain mindful that evidence is not substantial if it
is overwhelmed by other evidence in the record.”
Wall, 561 F.3d at 1052 (citations, quotations, and
Social Security Act authorizes payment of benefits to an
individual with disabilities. 42 U.S.C. § 401 et
seq. A disability is an “inability to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A); accord
42 U.S.C. § 1382c(a)(3)(A); see 20 C.F.R.
§404.1509 (duration requirement). Both the
“impairment” and the “inability” must
be expected to last not less than twelve months. Barnhart
v. Walton, 535 U.S. 212 (2002).
five-step sequential evaluation is described at 20 C.F.R.
§ 404.1520(a)(4), (b)-(g). “If the claimant is not
considered disabled at step three, but has satisfied her
burden of establishing a prima facie case of disability under
steps one, two, and four, the burden shifts to the
Commissioner to show the claimant has the [RFC] to perform
other work in the national economy in view of [his] age,
education, and work experience.” Fischer-Ross v.
Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). “The