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Foster v. Commissioner of Social Security Administration

United States District Court, E.D. Oklahoma

September 3, 2019

COMMISSIONER of the Social Security Administration, Defendant.



         The claimant Diana Lynn Foster 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 that she was not disabled. As discussed below, the undersigned Magistrate Judge RECOMMENDS that the Commissioner's decision be REVERSED and the case REMANDED to the ALJ for further proceedings.

         Social Security Law and Standard of Review

         Disability 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.[1]

         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. Sec'y of Health & Human Svcs., 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 800-01.

         Claimant's Background

         The claimant was forty-nine years old at the time of the administrative hearing (Tr. 631). She completed her GED and has worked as material handler and security guard (Tr. 22, 168). The claimant alleges that she has been unable to work since May 20, 2008, due to diabetes and problems with her neck, shoulders, arms, hands, and back (Tr. 167).

         Procedural History

         The claimant applied for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and she meets the insured status requirements through December 30, 2013. Her application was denied. ALJ Doug Gabbard, II, initially dismissed the claimant's request for a hearing in light of a previous application for disability insurance benefits, but the Appeals Council vacated the dismissal in light of new and material evidence submitted by the claimant's physician. On remand from the Appeals Council, ALJ Gabbard conducted an administrative hearing and determined that the claimant was not disabled in a written opinion dated June 28, 2017 (Tr. 11-24). The Appeals Council denied review, so the ALJ's opinion is the Commissioner's final decision for purposes of this appeal. See 20 C.F.R. §§ 404.981, 416.1481.

         Decision of the Administrative Law Judge

         The ALJ made his decision at step five of the sequential evaluation. He found that the claimant had the residual functional capacity (RFC) to perform a reduced range of medium work as defined in 20 C.F.R. §§ 404.1567(c), i. e., she could lift/carry/push/pull fifty pounds occasionally and twenty-five pounds frequently and stand/walk and sit six hours in an eight-hour workday, but that she could only occasionally reach, including overhead bilaterally, and occasionally grasp bilaterally (Tr. 16). The ALJ then concluded that although the claimant could not return to her past relevant work, she was nevertheless not disabled because there was work she could perform, i. e., furniture rental clerk and counter clerk (Tr. 22-23).


         The claimant asserts that the ALJ erred: (i) by failing to properly account for treating physician opinions in the record, and (ii) by failing to properly assess her RFC, including the ALJ's finding that she could perform medium work.[2] The undersigned Magistrate Judge agrees that the ALJ erred in his analysis, and the Commissioner's decision should therefore be reversed.

         The ALJ determined that the claimant had the severe impairments of cervical spine degenerative disc disease, bilateral carpal tunnel syndrome status post bilateral release, and bilateral shoulder degenerative joint disease status post surgery, as well as the nonsevere impairments of obesity, diabetes mellitus type II, history of chronic gastritis and GERD, ventral hernia, atherosclerosis, and nicotine abuse (Tr. 14). The relevant medical evidence reveals that the claimant was injured on the job twice, in 2004 she injured her wrists and in August 2005 she injured her cervical spine, bilateral shoulders, and bilateral arms. She underwent bilateral carpal tunnel releases, on October 28, 2004 for the right hand and wrist, and January 25, 2005 for the left hand and wrist (Tr. 323). Additionally, she underwent two left shoulder surgeries and one right shoulder surgery (Tr. 226). In November 2005, Dr. Patrick Fahey found the claimant temporarily partially disabled since August 18, 2005 due to cumulative trauma from the injury on that date (Tr. 233). She continued to complain of ...

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