Brown v. Social Security Administration
Filing
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OPINION AND ORDER by Judge John E Dowdell ; dismissing/terminating case (terminates case) ; accepting 23 Report and Recommendation (Re: 2 Social Security Complaint ) (SAS, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
DAVID W. BROWN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
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Case No. 14-CV-21-JED-FHM
OPINION AND ORDER
Before the Court is the Report & Recommendation (R&R) (Doc. 23) of United States
Magistrate Judge Frank H. McCarthy on review of a decision of the Commissioner of the Social
Security Administration (Commissioner) denying the plaintiff, David W. Brown, disability
benefits. Judge McCarthy recommends that the Commissioner’s decision denying benefits be
affirmed. Mr. Brown filed objections to the R&R, and he requests that the Court “reverse and/or
remand” this matter. (Doc. 24). The Court has reviewed the record and the objections, de novo.
I.
Background
Plaintiff applied for benefits under Titles II and XVI on August 26, 2010, alleging
disability onset date of July 1, 2008. The claims were denied on April 4, 2011 and upon
reconsideration on October 4, 2011. On August 23, 2012, the Administrative Law Judge (ALJ)
conducted a hearing. On September 27, 2012, the ALJ issued a decision denying disability
benefits after finding the plaintiff not disabled. (Doc. 13, R. 14-30). The ALJ found that
plaintiff met insured status through September 30, 2010 and had not engaged in substantial
gainful activity since the alleged onset date. (R. 19).
The ALJ found several severe impairments: degenerative arthritis of both ankles;
osteoarthritis of the right knee; arthritis of the right shoulder; hypertension; asthma; and alcohol
dependence in early full remission. (Id.). However, the ALJ found that plaintiff did not have an
impairment or combination of impairments that meet or medically equal the severity of a listed
impairment. (Id. at 19-20). After considering the record, the ALJ found that plaintiff has the
residual functional capacity (RFC) to perform light work, with the additional limitations that he
(1) can occasionally “climb, bend, kneel, crouch, stoop or crawl,” “push, pull or reach overhead
with the right upper extremity,” and “operate foot controls with the left lower extremity,” (2)
must avoid “rough, uneven surfaces,” “exposure to heights, fast or dangerous machinery, dust,
fumes and gases,” and “cold temperatures,” and (3) is “limited to simple, repetitive and routine
work involving no more than occasional contact with the public.” (Id. at 22).
The plaintiff had previously worked as a roustabout, a general laborer, and a saw
operator. The ALJ found that plaintiff is unable to perform any past relevant work because the
exertional requirements of the past work are precluded by plaintiff’s RFC. (Id. at 24). The ALJ
determined that there are a significant number of jobs in the national economy that the plaintiff
can perform, including cafeteria attendant, small products assembler, clerical mailer, and table
worker. (Id. at 25-26). The case was hence decided at step five of the evaluative process, with
the ALJ finding that plaintiff is not disabled. (Id. at 26).
II.
Standard of Review
Pursuant to Fed. R. Civ. P. 72(b)(3), “[t]he district judge must determine de novo any part
of the magistrate judge’s disposition that has been properly objected to. The district judge may
accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.”
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The Court’s task of reviewing the Commissioner’s decision is limited to a determination
of “whether the factual findings are supported by substantial evidence in the record and whether
the correct legal standards were applied.” Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir.
2003). Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”
Id.
“It is ‘more than a scintilla, but less than a
preponderance.’” Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (quoting Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). The Court will “neither reweigh the evidence nor
substitute [its] judgment for that of the agency.” White v. Barnhart, 287 F.3d 903, 905 (10th Cir.
2001) (quoting Castas v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)).
III.
Discussion
A.
Step five burden
Plaintiff first argues that Judge McCarthy erred by ignoring the burden shift to the
Commissioner at step five, which impacted his assessment of alleged errors by the ALJ. (Doc.
24 at 1). It is well-settled that, where a claimant meets his burden of establishing a prima facie
case of disability through step four, “the burden of proof shifts to the Commissioner at step five
to show that the claimant retains sufficient RFC to perform work in the national economy, given
her age, education, and work experience.” Hackett v. Barnhart, 395 F.3d 1168, 1171 (10th Cir.
2005) (citing Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)).
Contrary to plaintiff’s argument that Judge McCarthy “ignored” the burden shift at step
five, the burden shift was referenced in Judge McCarthy’s summary of plaintiff’s allegations
(Doc. 23 at 3). Moreover, the R&R correctly discussed the specific evidence relating to the
ALJ’s findings at step five, including medical records and the vocational expert’s testimony. (Id.
at 9). In any event, the Court is not required to reject the R&R simply because Judge McCarthy
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did not re-state every burden associated with the five step process. The record is clear, and
Judge McCarthy properly applied the law regarding step five, as is evidenced by his statements
in the R&R. (See id. at 9-10).
Moreover, the ALJ’s decision correctly recited that, at step five, the Commissioner “is
responsible for providing evidence that demonstrates that other work exists in significant
numbers in the national economy that the claimant can do, given the [plaintiff’s] residual
functional capacity, age, education, and work experience.” (R. 19). Plaintiff does not argue that
the ALJ failed to consider the burden to be the defendant’s, and it is clear that the ALJ did
impose the burden on the defendant at step five. Plaintiff’s objection regarding the burden at
step five is overruled.
B.
RFC and Job-Related Findings
Plaintiff argues that the ALJ’s RFC finding is “flawed as the ALJ failed to account for his
own findings that Plaintiff has degenerative arthritis in both ankles that the ALJ found to be
‘severe.’” (Doc. 24 at 1). He further argues that Judge McCarthy improperly upheld the ALJ’s
RFC finding and substituted his own opinion for that ALJ’s on ankle arthritis. (Id.). According
to the plaintiff, “another ALJ would likely have limited Plaintiff to ‘sedentary’ work rather than
‘light’ work.” (Id. at 2). The Court has reviewed the record, the ALJ’s findings regarding
arthritis, and the medical evidence of Mr. Brown’s ankle and joint pain, and determines that the
ALJ’s RFC finding that plaintiff could perform light work is supported by substantial evidence.
The record was inconsistent with respect to whether plaintiff’s problems were with one or both
ankles (e.g. compare R. 275-277 [noting plaintiff’s complaint in 2010 of moderate bilateral joint
pain and unsteady gait at a slow speed, favoring left leg] with R. 47 [plaintiff testified in 2012
that the issue was with his left ankle and his right ankle is “okay”]). The ALJ plainly considered
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plaintiff’s complaints of ankle pain in determining the RFC, and found that plaintiff’s statements
concerning the “intensity, persistence and limiting effects of these symptoms” were lacking in
credibility to the extent that they conflicted with the medical record. (See R. 21-22). Also, the
physicians who rendered opinions determined that plaintiff can perform light work activity,
which supports the ALJ’s RFC determination. (R. 305-312; R. 338 [affirming findings in R.
305-312]).
Plaintiff also argues that the RFC determination was in error because two of the jobs
identified by the vocational expert – cafeteria attendant and small products assembler – require
frequent reaching, which plaintiff contends to be inconsistent with the ALJ’s RFC limitation of
occasionally pushing, pulling, or reaching overhead with the right upper extremity. (Doc. 24 at 45; see R. 21). The Court agrees with Judge McCarthy that the ALJ’s RFC with respect to
reaching is supported by substantial record evidence, particularly plaintiff’s testimony that he
can reach overhead but not hold his hands up all the time (R. 50) and with the consultative
examiner’s findings with respect to the right upper extremity. (See Doc. 23 at 5). The Court also
agrees with Judge McCarthy’s analysis with respect to the lack of specificity in reaching
requirements in the Dictionary of Occupational Titles (DOT) and the Selected Characteristics of
Occupations Defined in the Revised DOT. (See Doc. 23 at 9-10).
The plaintiff correctly notes that, had the ALJ found him limited to sedentary work, he
would have been considered disabled under the Medical-Vocational Guidelines when he turned
50. He then argues that the ALJ should not have relied on any sedentary job to find him not
disabled at the fifth step. Plaintiff was not limited to sedentary work, but was limited to light
work, and the vocational expert testified that the other jobs he identified, which were light
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exertion jobs, existed in sufficient numbers to support the ALJ’s determination of no disability.
Plaintiff’s argument on this point is without merit.
Plaintiff also argues that the ALJ should not have relied upon the small products
assembler job because the ALJ’s RFC requires that plaintiff avoid “fast or dangerous machinery”
and the DOT description of that job requires the use of machinery. (See R. 21; Doc. 24 at 5).
The Court agrees with Judge McCarthy’s analysis, because the job does not involve “moving
mech. parts.” See DOT 706.684-022, 1991 WL 679050.
Plaintiff further contends that the ALJ did not include “all the limitations opined by Dr.
Morgan” or “suggested by Dr. Morgan’s examination.” (Doc. 24 at 3). Specifically, plaintiff
contends that the ALJ should have included additional “limitations” based upon Dr. Morgan’s
findings that plaintiff reported being on edge, concentration problems, psychomotor retardation,
dysphoria, and decreased motivation. (Id.; see also R. 284). Dr. Morgan reported all of those as
symptoms reported by plaintiff; he did not opine that they were “limitations.” (R. 284). The ALJ
accurately summarized Dr. Morgan’s findings and did take into account reported concentration
and other problems. (See R. 23-24). The Court finds no error in the ALJ’s treatment of Dr.
Morgan’s examination findings or the ALJ’s RFC findings.
C.
Breathing Issues
Plaintiff next challenges the ALJ’s determination that plaintiff’s “allegations that he
cannot work because of asthma are not entirely credible.” (R. 22; Doc. 24 at 4). Specifically,
plaintiff disputes that he continued smoking, which the ALJ cited in part as evidence that
plaintiff’s breathing difficulties could not be that severe if he continued to smoke. (See R. 22;
Doc. 24 at 4). The ALJ’s decision regarding plaintiff’s breathing difficulties is supported by
substantial record evidence. The ALJ properly examined plaintiff’s medical records relating to
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the breathing issues (see R. 22), and did take into account breathing problems in the ALJ’s RFC
findings, which included limitations that plaintiff must avoid exposure to dust, fumes, and gases
(R. 21). The Court finds no error on this issue.
IV.
Conclusion
Having found no reversible error in the ALJ’s decision, upon concluding that the ALJ
applied the correct legal standards and his decision is supported by substantial record evidence,
and agreeing with Judge McCarthy’s R&R, the Court overrules plaintiff’s objections (Doc. 24).
Accordingly, the Court accepts the R&R (Doc. 23) and the recommendation that the
Commissioner’s decision to deny plaintiff disability benefits be affirmed. Accordingly, the
Commissioner’s decision is affirmed.
A separate Judgment will be entered forthwith.
DATED this 25th day of April, 2016.
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