United States District Court, E.D. Oklahoma
REPORT AND RECOMMENDATION
P. SHREDER UNITED STATES MAGISTRATE JUDGE
claimant David Allen Berghauser 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 the
Administrative Law Judge (“ALJ”) erred in
determining he was not disabled. For the reasons set forth
below, the Commissioner's decision should be REVERSED and
the case REMANDED 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.Section 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 forty-two years old at the time of the
administrative hearing (Tr. 38, 178). He completed the
twelfth grade while attending special education classes and
has worked as a parking enforcement officer and janitor (Tr.
30, 209). The claimant alleges that he has been unable to
work since September 7, 2015, due to results of heat stroke,
sensitivity to heat, diabetes, dyslexia, learning trouble,
petit mal seizures, sleep apnea, depression, gout, and
arthritis (Tr. 208).
October 22, 2015, the claimant applied for disability
insurance benefits under Title II of the Social Security Act,
42 U.S.C. §§ 401-434. His application was denied.
ALJ Kevin Batik held an administrative hearing and determined
that the claimant was not disabled in a written opinion dated
March 24, 2017 (Tr. 21-32). The Appeals Council denied
review, so the ALJ's written 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
C.F.R. § 404.1567(a), but that he had the additional
limitations of being unable to climb ladders, ropes, and
scaffolds, or work at unprotected heights, around moving
mechanical parts, drive as part of most jobs, or be exposed
to extreme heat. The ALJ further found that the claimant
could understand, remember, and carry out simple tasks and
instructions, but that he was precluded from interaction with
the general public and limited to occasional interaction with
co-workers and supervisors (Tr. 27). 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, i. e., patcher, table worker, or
bonder (Tr. 30-31).
claimant contends that the ALJ erred by: (i) failing to
account for all his impairments in formulating the RFC,
specifically with regard to his visual impairments, (ii)
failing to properly evaluate his counselor's other source
opinion, and (iii) failing to properly evaluate his
subjective statements. The undersigned Magistrate Judge
agrees with the claimant's contention that the ALJ failed
to properly assess his RFC, and the decision of the
Commissioner should therefore be reversed, and the case
remanded for further proceedings.
found that the claimant had the severe impairments of
diabetes mellitus, epilepsy, hypertension, major depressive
disorder, and autism (Tr. 23). The relevant medical evidence
as to the claimant's eyes reveals that he experienced a
decline or change in vision in September 2015 and was
assessed with corneal pannus of the left eye, as well as
bilateral iris nevus, diabetic cataracts, and diabetes
mellitus type II with ophthalmic complications,
non-proliferative diabetic retinopathy, retinal hemorrhage,
myopia, and astigmatism (Tr. 321). Further treatment notes
describe the eye condition as an almost 3D myopic shift
secondary to high sugar levels (Tr. 321). That same month,
another treatment note indicates that the claimant's
acuity was still grossly impaired (Tr. 367). The
“Discussion Notes, ” refer to a period of heat
exhaustion that had previously hospitalized the claimant, as
well as the sudden death of his wife and lack of diet and
weight control that sent his blood sugars so high he was
almost in ketoacidosis and had to be intubated during a stay
in the ICU (Tr. 368). The note continues, that “He has
had little to no tolerance at work to physical [conditioning]
type environment. Couple with his limited mental ability to
understand the consequences of his disease processes has got
him to the point that his vision is now severely affected. He
will have to live with family for the long foreseeable future
in my view” (Tr. 368). The following month, his vision
condition was described as stabilized following updated
glasses for his refractive state (Tr. 325). In February 2016,
treatment notes again reflected the claimant's acuity was
impaired, and that his vision was still grossly impaired (Tr.
566). June 2016 and February 2017 treatment notes again refer
to the claimant's acuity as impaired (Tr. 699, 747). In
August 2016, the claimant again sought treatment for his
eyes, reporting blurred vision at distance and near, noting
that varied visual tasks were impaired, and that his eyes
fatigued easily (Tr. 719). The claimant was to monitor the
condition and report any changes immediately (Tr. 721).
claimant additionally struggled to manage hypertension and
presented to the emergency room on January 9, 2016 with blood
pressure of 177/114 but was discharged that same day
following blood pressure readings of 151/87, 136/65, and
154/67 (Tr. 536-538). The claimant was also treated for,
inter alia, generalized epilepsy and a Chiari I
brain malformation both of which were diagnosed in 2013 (Tr.
675, 679). Medical treatment notes also ...