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Howry v. Saul

United States District Court, W.D. Oklahoma

September 27, 2019

CHERYL HOWRY, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE

         Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration denying Plaintiff’s application for benefits under the Social Security Act. The Commissioner has answered and filed a transcript of the administrative record (hereinafter TR.___). The parties have consented to jurisdiction over this matter by a United States magistrate judge pursuant to 28 U.S.C. § 636(c).

         The parties have briefed their positions, and the matter is now at issue. Based on the Court’s review of the record and the issues presented, the Court REVERSES AND REMANDS the Commissioner’s decision.

         I. PROCEDURAL BACKGROUND

         On December 19, 2012, Plaintiff filed an application for disability benefits alleging an onset date of August 2, 2009. (TR. 88). The Social Security Administration (SSA) denied the application at the initial and reconsideration levels, and on October 3, 2014, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 88-96). The Appeals Council denied Plaintiff’s request for review, and Ms. Howry did not file an appeal in federal court. (TR. 48-49).

         On March 22, 2016, Plaintiff filed a second application for disability benefits alleging an onset date of August 9, 2009. (TR. 24). Later, Plaintiff amended her onset date to October 4, 2014-the day following the date of the first unfavorable decision. (TR. 24). Plaintiff’s date last insured was December 31, 2014. (TR. 25-26). Thus, the relevant period of disability for the second application was October 4, 2014 through December 31, 2014. See Hamlin v. Barnhart, 365 F.3d 1208, 1213 (10th Cir. 2004) (noting that the relevant period for assessing disability ran from the day after the adjudication on the prior application to the last disability insured date).

         Initially and on reconsideration, the SSA denied Plaintiff’s second application for benefits. Following a hearing, an ALJ issued another unfavorable decision. (TR. 24-32). The Appeals Council denied Plaintiff’s request for review. (TR. 10-12). Thus, the second decision of the ALJ became the final decision of the Commissioner and the subject of the instant appeal.[1]

         II. THE ADMINISTRATIVE DECISION

         The ALJ followed the five-step sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. § 404.1520. At step one, the ALJ determined that Plaintiff did not engage in substantial gainful activity between her amended alleged onset date of October 4, 2014 through December 31, 2014, her date last insured. (TR. 27). At step two, the ALJ determined that Ms. Howry had the following severe impairments: degenerative disc disease with radiculopathy and osteopenia. (TR. 27). At step three, the ALJ found that Plaintiff’s impairments did not meet or medically equal any of the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1 (TR. 27).

         At step four, the ALJ concluded that during the relevant period, Ms. Howry retained the residual functional capacity (RFC) to:

[P]erform light work as defined in 20 CFR 404.1567(b) except she can occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; is unable to climb ladders, ropes, and scaffolding; can occasionally reach overhead with the bilateral upper extremities; and can frequently, but not constantly, handle and finger bilaterally.

(TR. 28). With this RFC, the ALJ concluded that Ms. Howry was unable to perform any past relevant work. (TR. 30). Thus, the ALJ proceeded to step five and presented the RFC limitations to a vocational expert (VE) to determine whether there were other jobs in the national economy that Plaintiff could perform. (TR. 60-61). Given the limitations, the VE identified three jobs from the Dictionary of Occupational Titles. (TR. 61). The ALJ adopted the testimony of the VE and concluded that Ms. Howry was not disabled at step five based on her ability to perform the identified jobs. (TR. 31-32).

         III. STANDARD OF REVIEW

         This Court reviews the Commissioner’s final “decision to determin[e] whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). Under the “substantial evidence” standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency’s factual determinations. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). “Substantial evidence … is more than a mere scintilla … and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. at 1154 (internal citations and quotation marks omitted).

         While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).

         IV. ISSUES PRESENTED

         Ms. Howry alleges: (1) the ALJ erred in his treatment of evidence which pre-dated the period of disability; (2) the ALJ failed to discuss Ms. Howry’s inability to afford treatment when evaluating the RFC; (3) the ALJ failed to consider Plaintiff’s mental impairments at step four; and (4) a lack of substantial evidence to support the RFC. (ECF No. 18:8-27).

         V. CONSIDERATION OF EVIDENCE WHICH PRE-DATED THE PERIOD OF DISABLITY

         As stated, the relevant period of disability is October 4, 2014 through December 31, 2014. See supra. According to Ms. Howry, the ALJ erred in his treatment of evidence which pre-dated this period. (ECF No. 18:8-15). Specifically, Plaintiff argues that the ALJ erred in evaluating: (1) a medical opinion from treating physician, Dr. Jeffrey Floyd, which was rendered in January 2013 and (2) all “treatment notes” prior to the amended onset date of October 4, 2014. (ECF No. 18:8-15). The Court agrees with Ms. Howry.

         On January 3, 2013, Dr. Floyd authored a “Residual Functional Capacity Questionnaire” which outlined Plaintiff’s specific abilities and limitations in several work-related areas. (TR. 308-314). According to Dr. Floyd, Plaintiff suffered from cervical stenosis, cervical radiculopathy, and ...


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