Conkle v. Astrue

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION of the Magistrate Judge...the court having reviewed the record and considered plaintiff's arguments de novo, the court agrees with the magistrate judge's analysis and adopts his Report and Reccomendation...accordingly the Commissioner's decision is AFFIRMED. Signed by Honorable Joe Heaton on 12/07/2011. (lam)

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

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NO. CIV-10-1130-HE

ORDER
Plaintiff Christy Conkle 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 Robert E. Bacharach, who recommends that the Commissioner’s
decision be affirmed.
This is the second time this case is before this court. A prior decision affirming the
agency’s denial of benefits was reversed by the Tenth Circuit. On remand, after another
administrative hearing, the ALJ again denied benefits. He concluded, at step two of the fivestep sequential evaluation process for determining whether a social security claimant is
disabled, that several of plaintiff’s impairments qualified as severe. At step three he
concluded those impairments did not meet or equal a listed impairment. At step four the ALJ
found plaintiff had the residual functional capacity (“RFC”) to perform light work, but she
could not perform her past relevant work as a mail carrier. Finally, at step five the ALJ
determined plaintiff was not disabled because jobs existed in significant numbers in the

national economy that she could perform. The Appeals Council denied plaintiff’s request
for review and the ALJ’s decision became the final decision of the Commissioner.
Plaintiff reurges most of the arguments she presented to the magistrate judge. She
claims she was denied a full and fair hearing, challenges the ALJ’s step three determination,
and contends the ALJ erred in his treatment of the treating physician’s opinion, improperly
based his RFC assessment on his own interpretation of the medical evidence and improperly
relied on the medical-vocational guidelines in finding she was not disabled.
The Commissioner’s decision is reviewed to determine whether it is supported by
substantial evidence and whether the correct legal standards were applied. Winfrey v.
Chater, 92 F.3d 1017, 1019 (10th Cir. 1996). Under that standard, the court concludes the
decision denying benefits should be affirmed.
Plaintiff asserts the ALJ ’s conclusion at step three that she failed to satisfy the criteria
of a listed impairment was not supported by substantial evidence. Although a close question,
the court agrees with the magistrate judge that sufficient evidence supported the ALJ’s
ratings of plaintiff’s restrictions in activities of daily living, maintenance of social
functioning and maintenance of concentration, persistence, or pace.1 The court also concurs
with the magistrate judge that the ALJ did not improperly discount Dr. Ghaznavi’s opinion.2

1

Plaintiff asserts that her loss of custody of her two children is additional evidence of her
asserted marked problems with daily activities. She did not, though, cite to evidence in the Record
that indicates why she lost custody. The only reference to child custody the court discovered
indicated plaintiff may have lost custody because of drug charges. Record at p. 308.
2

Contrary to plaintiff’s assertion, the ALJ and magistrate judge correctly noted that
plaintiff’s increased anxiety on November 29, 2004, was attributed to a lack of medication. See
2

As for plaintiff’s claim that she was denied a full and fair hearing by the ALJ’s
indication at the hearing that he had concluded plaintiff satisfied Listing 12.04, the court
agrees with the magistrate judge that plaintiff has not demonstrated the ALR violated 20
C.F.R. § 404.946. The regulation does not apply in these circumstances.
At the hearing the ALJ did not definitively announce his decision, but instead took the
matter under advisement.3 His written decision differed from the disability determination
which his comments during the hearing had led plaintiff and her counsel to believe had been
reached. Understandably plaintiff was disappointed by the ALJ’s change in position.
However, as the magistrate judge pointed out, the ALJ specifically asked plaintiff’s counsel
if he had anything to add before he closed the hearing. If counsel had additional evidence,
he should have proceeded to offer it at that time or seek clarification from the judge
regarding the finality of his decision, before he elected to forgo further submissions.
Significantly, plaintiff did not identify any evidence she would otherwise have introduced
at the hearing but for the ALJ’s comments, or indicate how she was prejudiced by his
remarks. While the ALJ’s statement may have misled the plaintiff as to the likely outcome
of the case or have been otherwise premature, it did not violate the regulation or deprive
plaintiff of due process.
Plaintiff also objects to the ALJ’s RFC assessment on the ground he improperly

Report and Recommendation, pp. 18-19. The medical note that plaintiff had reported “medication
compliance,” Record at p.242, does conflict with that conclusion. Id. at p. 243.
3

The court does not agree with plaintiff that the matter under advisement related to whether
plaintiff needed a representative payee.
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interpreted medical evidence.4 That specific issue was not, however, presented to the
magistrate judge. It is, therefore, deemed waived and will not be considered. United States
v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) ("In this circuit, theories raised for the
first time in objections to the magistrate judge's report are deemed waived.”).
As her final basis for remand, plaintiff contends the ALJ improperly relied on the
medical-vocational guidelines. The court concurs with the magistrate judge’s analysis on this
issue. The case plaintiff relies on, Lopez v. Barnhart, 78 Fed.Appx. 675 (10th Cir. 2003)
(unpublished), does not require a different result. See id. at 679 (“Admittedly, the grids may
be used to direct a conclusion if the claimant's nonexertional impairments do not significantly
reduce the underlying job base.”).
While the court might have reached a different conclusion had it been the fact finder,
its role is not to “reweigh the evidence [or] substitute [its] judgment for that of the
[Commissioner].” Id. at 677 (internal quotations omitted). Having reviewed the record and
considered plaintiff’s arguments de novo, the court agrees with the magistrate judge’s
analysis and adopts his Report and Recommendation. Accordingly, the Commissioner’s
decision is AFFIRMED.

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The magistrate judge construed plaintiff’s argument regarding the RFC assessment as a
challenge to the sufficiency of the explanation provided by the ALJ for his conclusions.
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IT IS SO ORDERED.
Dated this 7th day of December, 2011.

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