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IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

KAREN L. DONNELLEY,

Plaintiff,

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.

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Case No. CIV-12-174-KEW

OPINION AND ORDER

Plaintiff Karen L. Donnelley (the “Claimant”) requests judicial
review of the decision of the Commissioner of the Social Security
Administration (the “Commissioner”) denying Claimant’s application
for disability benefits under the Social Security Act. Claimant
appeals the decision of the Administrative Law Judge (“ALJ”) and
asserts that the Commissioner erred because the ALJ incorrectly
determined that Claimant was not disabled. For the reasons
discussed below, it is the finding of this Court that the
Commissioner’s decision should be and is REVERSED and REMANDED 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. . .”

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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. . .” 42 U.S.C.
§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

Judicial review of the Commissioner’s determination is limited
in scope by 42 U.S.C. § 405(g). This Court’s review is limited to
two inquiries: first, whether the decision was supported by

1 Step one requires the claimant to establish that he is not
engaged in substantial gainful activity, as defined by 20 C.F.R. §§
404.1510, 416.910. Step two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that
significantly limit his ability to do basic work activities. 20 C.F.R.
§§ 404.1521, 416.921. If the claimant is engaged in substantial gainful
activity (step one) or if the claimant’s impairment is not medically
severe (step two), disability benefits are denied. At step three, the
claimant’s impairment is compared with certain impairments listed in 20
C.F.R. Pt. 404, Subpt. P, App. 1. A claimant suffering from a listed
impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry. If not, the
evaluation proceeds to step four, where claimant must establish that he
does not retain the residual functional capacity (“RFC”) to perform his
past relevant work. If the claimant’s step four burden is met, the
burden shifts to the Commissioner to establish at step five that work
exists in significant numbers in the national economy which the claimant
– taking into account his age, education, work experience, and RFC – can
perform. Disability benefits are denied if the Commissioner shows that
the impairment which precluded the performance of past relevant work does
not preclude alternative work. See generally, Williams v. Bowen, 844
F.2d 748, 750-51 (10th Cir. 1988).

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substantial evidence; and, second, whether the correct legal
standards were applied. Hawkins v. Chater, 113 F.3d 1162, 1164
(10th Cir. 1997)(citation omitted). The term “substantial evidence”
has been interpreted by the United States Supreme Court to require
“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)). The
court may not re-weigh the evidence nor substitute its discretion
for that of the agency. Casias v. Secretary of Health & Human
Servs., 933 F.2d 799, 800 (10th Cir. 1991). Nevertheless, the court
must review the record as a whole, and the “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 800-01.

Claimant’s Background

Claimant was born on July 7, 1961 and was 49 years old at the
time of the ALJ’s decision. Claimant completed her education
through the eighth grade. She earned a certificate as a nurse’s
aide. Claimant worked in the past as a nurse’s aide. Claimant
alleges an inability to work beginning January 1, 1999 due to
limitations resulting from seizures, vision problems, hypertension,

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headaches, breathing problems, chest pain, problems around fumes,
ankle problems, and sleep problems. Claimant also complains of
depression,
problems
understanding and following instructions, problems handling stress,
and problems handling crowds.

concentration

problems,

memory

and

Procedural History

On August 10, 2009, Claimant protectively filed for disability
insurance benefits under Title II (42 U.S.C. § 401, et seq.) and
for supplemental security income pursuant to Title XVI (42 U.S.C.
§ 1381, et seq.) of the Social Security Act. Claimant’s
applications were denied initially and upon reconsideration. On
September 28, 2010, an administrative hearing was held before ALJ
Osly F. Deramus in McAlester, Oklahoma. On January 10, 2011, the
ALJ issued an unfavorable decision. On March 12, 2012, the Appeals
Council denied review of the ALJ’s decision. As a result, the
decision of the ALJ represents the Commissioner’s final decision for
purposes of further appeal. 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 determined that while Claimant suffered from severe
impairments, she did not meet a listing and retained the residual
functional capacity (“RFC”) to perform less than a full range of

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light work.

Errors Alleged for Review

Claimant asserts the ALJ committed error in (1) failing to
properly consider the opinion of the state agency physician
regarding Claimant’s mental functioning limitations; and (2)
accepting the vocational expert’s testimony when it was inconsistent
with the Dictionary of Occupational Titles (“DOT”).

Consideration of Opinion Evidence

In his decision, the ALJ found Claimant suffered from the
severe impairments of seizure disorder, by history, residuals of a
fibula fracture, severe tobacco abuse, depression, and scattered
wheezing in all lung fields with rhonchi in all lung fields. (Tr.
15). The ALJ determined Claimant retained the RFC to perform less
than a full range of light work. He found Claimant could
occasionally stoop, crouch, crawl, kneel, and balance, could
occasionally climb stairs but could not climb ladders. Claimant
must avoid concentrated exposure to dust, fumes, gases, and other
pulmonary irritants and avoid all exposure to heights and dangerous
moving machinery. The ALJ also found that due to psychologically
based factors, Claimant had some limitations but can understand,
remember and carry out simple instructions. She could adapt to
changes in her environment. Claimant was found to be able to

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interact superficially and incidentally for work purposes with
supervisors, coworkers, and the public. (Tr. 17). After
consultation with a vocational expert, the ALJ found Claimant could
perform the representative job of a café food worker, which he found
existed in sufficient number nationally and regionally. He,
therefore, concluded Claimant was not disabled. (Tr. 22).

Claimant first contends the ALJ failed to properly evaluate the
opinion of a state agency physician regarding her mental functional
limitations. On January 27, 2010, Dr. Deborah Hartley completed a
Mental RFC Assessment form on Claimant. She determined Claimant was
markedly limited in the areas of the ability to understand and
remember detailed instructions and the ability to carry out detailed
instructions. She also found Claimant was moderately limited in the
area of the ability to interact appropriately with the general
public. (Tr. 361-62). She concluded in her narrative statement
that Claimant was able to think, remember, and carry out simple
instructions, could adapt to changes in her environment, and was
able to interact superficially and incidentally for work purposes
with supervisors, coworkers, and the general public. (Tr. 363).

The ALJ considered Dr. Hartley’s opinion insofar as it stated
an ability to think, remember, and carry out simple instructions,
allowed for adapting to changes in Claimant’s environment and
provided for the ability to interact superficially and incidentally

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for work purposes with supervisors, coworkers, and the general
public. (Tr. 19). The ALJ did not address Dr. Hartley’s finding
of a marked limitation in Claimant’s ability to understand,
remember, and carry out detailed instructions in his RFC
determination. (Tr. 17). The ALJ must evaluate every medical
opinion in the record. Hamlin v. Barnhart, 365 F.3d 1208, 1215
(10th Cir. 2004). The ALJ must also explain in the decision the
weight given to the medical opinions. Soc. Sec. R. 96-6p, 1996 WL
374180. An ALJ “is not entitled to pick and choose through an
uncontradicted medical opinion, taking only the parts that are
favorable to a finding of nondisability.” Haga v. Astrue, 482 F.3d
1205, 1208 (10th Cir. 2007).

The ALJ selectively ignored Dr. Hartley’s opinion dealing with
detailed instructions. Moreover, the job of café worker requires
a reasoning level of 2. DOT #311.677-014. Reasoning level 2
requires the ability to “[a]pply commonsense understanding to carry
out detailed but uninvolved written or oral instructions.” DOT,
App. C. If the limitation on detailed instructions were included
in Claimant’s RFC, it is likely that she would not meet the
requirements for the identified job. On remand, the ALJ shall
address the limitation on detailed instructions contained in Dr.
Hartley’s opinion, providing the weight given to the opinion, the
basis for doing so, and the basis for rejecting the finding of

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limitations omitted from his decision.

Consistency with DOT

Claimant contends the ALJ failed to obtain an explanation for
the deviation from the DOT his questioning of the vocational expert
elicited. The ALJ’s hypothetical questioning of the vocational
expert mirrored his RFC findings. With regard to mental limitations
of function, the ALJ limited Claimant to interacting superficially
and incidentally for work purposes with supervisors, coworkers and
the general public. (Tr. 49). The vocational expert stated that
with Claimant’s restrictions, she could perform the job of cafeteria
food service worker, which the expert classified as light,
semiskilled with an SVP of 3. (Tr. 52). The DOT specifies that the
job of café attendant requires “significant” people service. DOT
#311.677-014. This requirement would appear to be in conflict with
the mental/social restriction contained in Claimant’s RFC as
specified by the ALJ.

A vocational expert's testimony can provide a proper basis for
an ALJ's determination where the claimant's impairments are
reflected adequately in the hypothetical inquiries to the expert.
Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir. 1993). However, an
“ALJ must investigate and elicit a reasonable explanation for any
conflict between the [DOT] and expert testimony before the ALJ may

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rely on the expert’s testimony as substantial evidence to support
a determination of nondisability.” Haddock v. Apfel, 196 F.3d 1084,
1091 (10th Cir. 1999). The ALJ and the vocational expert failed to
explain the apparent deviation from the DOT in the hypothetical
questioning at step five so it was improper for the ALJ to rely upon
the vocational expert’s testimony as it currently stands in the
record. On remand, the ALJ shall obtain the necessary explanation.

Conclusion

The decision of the Commissioner is not supported by
substantial evidence and the correct legal standards were not
applied. Therefore, this Court finds, in accordance with the fourth
sentence of 42 U.S.C. § 405(g), the ruling of the Commissioner of
Social Security Administration should be and is REVERSED and the
matter REMANDED for further proceedings consistent with this Opinion
and Order.

IT IS SO ORDERED this 20th day of September, 2013.

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