United States District Court, E.D. Oklahoma
REPORT AND RECOMMENDATION
P. SHREDER UNITED STATES MAGISTRATE JUDGE.
claimant Sharon Berdahl requests judicial review of a denial
of benefits by the Commissioner of the Social Security
Administration pursuant to 42 U.S.C. § 405(g). She
appeals the Commissioner's decision and asserts that the
Administrative Law Judge (“ALJ”) erred in
determining she was not disabled. For the reasons discussed
below, the Commissioner's decision should be REVERSED and
the case REMANDED to the ALJ 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 h[er] physical or mental impairment or
impairments are of such severity that [s]he is not only
unable to do h[er] previous work but cannot, considering
h[er] 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.
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 the 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 fifty-three years old at the time of the
administrative hearing (Tr. 36). She completed high school
and one year of college-level work and has worked as a nurse
assistant and medical records clerk (Tr. 26, 230). The
claimant alleges inability to work since September 12, 2015,
to depression, anxiety, panic attacks, low back pain, hip and
right leg pain, breathing issues, and right shoulder pain
September 29, 2015, the claimant applied for disability
insurance benefits under Title II of the Social Security Act,
42 U.S.C. §§ 401-434. Her application was denied.
ALJ John W. Belcher conducted an administrative hearing and
determined that the claimant was not disabled in a written
opinion dated April 18, 2017 (Tr. 15-27). 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 light work as defined in 20 C.F.R.
§ 404.1567(b), i. e., she could
lift/carry/push/pull up to twenty pounds occasionally and ten
pounds frequently, and stand/walk and sit up to six hours
each in an eight-hour workday, but that she could only
occasionally climb stairs/ramps/ladders/ropes/scaffolds, as
well as stoop, kneel, crouch, crawl, and reach above the head
with the right arm. He further found she could use foot
controls frequently with the right leg, but that she could
only have occasional exposure to fumes, odors, dusts, toxins,
gases, and poor ventilation. Finally, he found she could do
simple and routine tasks, allowing for unskilled work,
provided that she have only superficial contact with
co-workers and supervisors (contact similar to that a grocery
clerk might have with co-workers and supervisors), and that
she cannot have contact with the public (Tr. 19). The ALJ
concluded that although the claimant could not return to her
past relevant work, she was nevertheless not disabled because
she there was work she could perform in the economy, e.
g., food product sorter, inspector/hand packer, or small
product assembler (Tr. 26-27).
claimant contends that the ALJ erred by: (i) improperly
assessing her pain with respect to her subjective complaints,
and (ii) failing to account for all her limitations,
specifically her use of a cane and limitations related to her
feet, hips, and joints. Because the ALJ does appear to have
ignored probative evidence regarding the claimant's
impairments, the decision of the Commissioner should be
determined that the claimant had the severe impairments of
lumbosacral pain, degenerative joint disease of the bilateral
hips, right leg pain, chronic pulmonary insufficiency, right
shoulder derangement, depression, and anxiety (Tr. 17). The
relevant medical evidence demonstrates that the claimant
reported pain in her lower back, radiating to her hip, as
well as weakness in the back and legs (Tr. 320). In October
2014, which was prior to the alleged onset date, the claimant
reported worsening back pain and trouble with her gait,
including being unsteady at times and at risk of falling (Tr.
414). In May 2015 she was unable to perform tandem walking,
heel walking, or toe walking because she ambulated with a
cane, her Romberg test was positive, and when demonstrating
conventional walking she was unable to turn quickly and had a
painful gait (Tr. 332). In ...