Hale v. Astrue

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATION of the Magistrate Judge...the court having conducted a de novo review of the ALJ's decision the court agrees with the magistrate judge that "there is substantial evidence in the record that plaintiff was not disabled as of 12/31/2003, and no error occurred in the ALG's evaluation of the evidence...the court AFFIRMS the decision of the Commissioner. Signed by Honorable Joe Heaton on 09/14/2011. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
THERESA LYNN HALE,
Plaintiff,
vs.
MICHAEL J. ASTRUE, Commissioner
of the Social Security Administration,
Defendant.

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NO. CIV-10-1082-HE

ORDER
Plaintiff Theresa Lynn Hale filed this action seeking judicial review of the final
decision of the Commissioner of the Social Security Administration denying her application
for disability insurance benefits. Consistent with 28 U.S.C. § 636(b)(1)(B), the case was
referred to Magistrate Judge Gary M. Purcell, who recommends that the Commissioner’s
decision be affirmed.
Plaintiff claims she is disabled due to fibromyalgia and related pain, fatigue, and
memory and concentration problems. She filed her application for benefits on August 24,
2007, and, after it was denied initially and on reconsideration, she requested a hearing before
an Administrative Law Judge (“ALJ”). After a hearing held on July 14, 2009, at which
plaintiff did not appear, the ALJ issued a decision finding that plaintiff was not disabled.1
The ALJ denied benefits at step two of the five step evaluation process for
determining disability. Although he found plaintiff suffered from degenerative joint disease,

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Plaintiff waived her right to appear at the hearing. Consequently, the ALJ “did not hear
testimony regarding the claimant’s symptoms or limitations.” Administrative Record, p. 15.

fibromyalgia, asthma, and depression, he concluded those impairments did not significantly
limit her ability to work during the pertinent time period. He found plaintiff’s “statements
concerning the intensity, persistence and limiting effects of [those] symptoms” not to be
credible. Administrative Record, p. 16. The Appeals Council denied plaintiff’s request for
review and the ALJ’s decision became the final decision of the Commissioner.
Plaintiff seeks to have the case remanded on the basis the ALJ’s credibility analysis
was faulty. The magistrate judge rejected that argument, concluding the ALJ did consider
the pertinent evidence – both objective and subjective – pertaining to plaintiff’s allegations
of disabling pain, fatigue, and memory and concentration deficits and provided reasons
supporting his credibility determination. The magistrate judge found that determination was
supported by substantial evidence in the record.
In her objection to the Report and Recommendation, plaintiff asserts that the
magistrate judge imposed the wrong evidentiary standard at step two, citing his statement
that her “subjective complaints of pain were not sufficient to in itself establish disability.”
Report and Recommendation, p. 5. When read in context it is clear that the magistrate judge
meant that plaintiff failed to make the de minimis showing required for her claim to advance
beyond step two of the evaluation sequence. The court concurs with the magistrate judge’s
analysis and conclusion on this issue. As he noted, the medical records “do not provide any
evidence of restrictions stemming from the diagnosed impairments ....There are no notes of
complaints of widespread pain, stiffness, soreness, or fatigue, and nowhere in the medical
record is there any note of a complaint of memory or concentration problems as alleged by
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Plaintiff in her application documents.” Id. at p. 6.
Having conducted a de novo review of the ALJ’s decision, the court agrees with the
magistrate judge that “there is substantial evidence in the record that Plaintiff was not
disabled as of December 31, 2003, and no error occurred in the ALJ’s evaluation of the
evidence.” Id. at p. 8. Accordingly, the court adopts Magistrate Judge Purcell’s Report and
Recommendation and affirms the decision of the Commissioner.
IT IS SO ORDERED.
Dated this 14th day of September, 2011.

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