United States District Court, E.D. Oklahoma
REPORT AND RECOMMENDATION
P. SHREDER UNITED STATES MAGISTRATE JUDGE
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.
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. 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
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).
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,
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 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.
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. The undersigned Magistrate Judge agrees
that the ALJ erred in his analysis, and the
Commissioner's decision should therefore be reversed.
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