Oestreich v. Commissioner of Social Security

Filing 21

ORDER ACCEPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: The Court finds that the Magistrate Judge's Report and Recommendation in this case should be and is hereby ACCEPTED and the Plaintiff's case is DISMISSED with prejudice. Magistrate Judge E. Scott Frost no longer assigned to case. (Ordered by Judge Reed C. O'Connor on 4/27/2017) (skg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
ALISHA NICOLE OESTREICH,
Plaintiff,
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

§
§
§
§
§
§
§
§
§
§

Civil Action No. 4:16-cv-00152-O-BL

ORDER ACCEPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge issued his Report and Recommendation (“R. & R.”) in this
case. See R. & R., ECF No. 18. Plaintiff timely filed objections. See Obj. to R. & R., ECF No. 19.
The Court has concluded a de novo review of those portions of the proposed findings to which an
objection was made. See Fed. R. Civ. P. 72(b)(3). Having reviewed the motion, the applicable
law, and the record before the Court, the Court finds that the R. & R. in this case should be and is
hereby ACCEPTED and Plaintiff’s objections OVERRULED.
I.

BACKGROUND
This factual recitation is taken from the R. & R. in this case. See R. & R., ECF No. 18.

Plaintiff Alisha Nicole Oestreich (“Plaintiff” or “Oestreich”) applied for social security disability
insurance benefits on February 4, 2013, alleging disability impairments as of January 1, 2010. Id.
at 1. Oestreich’s application was denied on April 4, 2013, and was again denied on reconsideration
on July 7, 2013. Id. Plaintiff then requested a hearing before an Administrative Law Judge
(“ALJ”) but was found not to be disabled following the June 6, 2014 hearing. Id. Oestreich then
sought review from the Appeals Council, which denied her request for review on October 29,
1

2015. Id. at 2. Accordingly, the ALJ’s decision constituted the final decision of the Commissioner
of Social Security (“Commissioner”). See Higginbotham v. Barnhart, 405 F.3d 332, 334 (5th Cir.
2005). Finally, Plaintiff sought judicial review of the denial decision pursuant to 42 U.S.C.
§ 405(g), with the case being referred to United States Magistrate Judge E. Scott Frost pursuant to
28 U.S.C. § 636(c). R. & R. 1, ECF No. 18.
The Magistrate Judge’s R. & R. recommends that the decision of the ALJ be affirmed and
Plaintiff’s complaint be dismissed. Id. at 9. Plaintiff objects to the R. & R., arguing that: (1) the
ALJ failed to give proper weight to her symptoms of pain or to explain how her daily activities
undermined her credibility in relation to her pain-related claims; and (2) the ALJ’s classification
of her rheumatoid arthritis as a nonsevere impairment constituted prejudicial error. Obj. to
R. & R., ECF No. 19.
II.

LEGAL STANDARDS
Judicial review of the Commissioner’s denial of benefits is limited to whether the

Commissioner’s position is supported by substantial evidence and whether the Commissioner
applied proper legal standards in evaluating the evidence. Greenspan v. Shalala, 38 F.3d 232, 236
(5th Cir. 1994); 42 U.S.C. §§ 405(g), 1383(C)(3). Substantial evidence is defined as more than a
scintilla, less than a preponderance, and as being such relevant and sufficient evidence as a
reasonable mind might accept as adequate to support a conclusion. Leggett v. Chater, 67 F.3d 558,
564 (5th Cir. 1995). In applying the substantial evidence standard, the reviewing court does not
re-weigh the evidence, retry the issues, or substitute its own judgment, but rather, scrutinizes the
record to determine whether substantial evidence is present. Greenspan, 38 F.3d at 236. A finding
of no substantial evidence is appropriate only if there is a conspicuous absence of credible
evidentiary choices or contrary medical findings to support the Commissioner’s decision. Johnson

2

v. Bowen, 864 F.2d 340, 343–44 (5th Cir. 1988). “The Commissioner, not the court, has the duty
to weigh the evidence, resolve material conflicts in the evidence, and make credibility choices.”
Carrier v. Sullivan, 944 F.2d 105, 109 (5th Cir. 1991).
The Social Security Administration uses a five-step process to determine whether an
individual is disabled. See 20 C.F.R. § 404.1520(a)(4). The steps are followed in order, and if at
any step the Commissioner determines that the claimant is or is not disabled, the evaluation does
not go on to the next step. Id. The five steps consider: (1) whether the claimant is engaged in
substantial gainful activity; (2) the medical severity of the claimant’s impairments; (3) whether the
claimant’s medical impairment or combination of impairments meets or medically equals the
criteria listed in the Listing of Impairments; (4) the claimant’s residual functional capacity and
past relevant work; and (5) whether the combination of the claimant’s residual functional capacity,
age, education, and work experience allow for adjustments to be made to permit the claimant to
work. Id. If the impairment is severe but does not meet or equal a listed impairment, then the
Commissioner must conduct a residual functional capacity assessment. Id. § 404.1520(e).
The scope of judicial review of a decision under the supplemental security income program
is identical to that of a decision under the social security disability program. Davis v. Heckler, 759
F.2d 432, 435 (5th Cir. 1985). Moreover, the relevant law and regulations governing the
determination of disability under a claim for disability insurance benefits are identical to those
governing the determination under a claim for supplemental security income. Id. Thus, the Court
may rely on decisions in both areas without distinction in reviewing an ALJ’s decision. Id.
III.

ANALYSIS
In this case, the ALJ followed the five-step evaluation process. See R. & R. 1–2, ECF

No. 18. The ALJ determined: (1) Oestreich had not engaged in substantial gainful activity since

3

January 1, 2010; (2) Oestreich had the severe impairments of degenerative disc disease and
degenerative joint disease; (3) Oestreich’s severe impairments did not meet and were not
equivalent to any listed impairments; (4) Oestreich could not perform any past relevant work; and
(5) Oestreich could perform a sufficient number of jobs in the national economy. Id.
In challenging the Magistrate Judge’s affirmance of the ALJ’s denial of her disability
claims, Oestreich argues that: (1) the ALJ failed to give proper weight to her symptoms of pain or
to explain how her daily activities undermined her credibility in relation to her pain-related claims;
and (2) the ALJ’s classification of her rheumatoid arthritis as a nonsevere impairment constituted
prejudicial error. Obj. to R. & R., ECF No. 19. The Court will now examine Oestreich’s
arguments in turn.
A.

Proper Weight Given to Pain-Induced Symptoms

Plaintiff contends that the ALJ failed to give proper weight to her symptoms of pain as well
as to explain the rationale for finding that her daily activities weakened her credibility regarding
the level, persistence, and effects of her pain. Id. at 1–2. However, there is ample evidence that
the ALJ did consider Plaintiff’s pain symptoms when making the disability determination but
determined they were inconsistent with her daily activities. See SSA Admin. R., Decision 18–20,
ECF No. 12-3.
Plaintiff urges the Court to explain how her admitted daily activities are inconsistent with
her disability. See Obj. to R. & R. 2, ECF No. 19. But it is up to the Plaintiff to affirmatively
show that the ALJ’s analysis of the record is objectively unsound, rather than the onus being on
the ALJ to explicate at each step of the credibility process. See Clary v. Barnhart, 214 Fed. App’x.
479, 482 (5th Cir. 2007); see also Hillman v. Barnhart, 170 Fed. App’x. 909, 913 (5th Cir. 2006).
When Plaintiff’s claims of pain and her admitted daily activities stand in tension, as they do here,

4

the ALJ may properly consider this contradiction in determining the veracity of Plaintiff’s claims
of pain. Reyes v. Sullivan, 915 F.2d 151, 155 (5th Cir. 1990) (per curiam) (holding that “the
inconsistencies between [Plaintiff’s] testimony about his limitations and his daily activities were
quite relevant in evaluating his credibility”). Accordingly, the Court finds that the ALJ properly
considered Plaintiff’s symptoms of pain when making the determination of disability. Thus,
Plaintiff’s objection as to the weight given to her pain-related claims is OVERRULED.
B.

Determination of Rheumatoid Arthritis as a Nonsevere Impairment

Oestreich further contends that she suffered prejudicial error resulting from the
classification of her rheumatoid arthritis as a nonsevere impairment. See Obj. to R. & R. 3, ECF
No. 19. Plaintiff argues that rejection of rheumatoid arthritis as a severe impairment at step two
of the process resulted in her arthritis-specific limitations not being properly considered either in
the Residual Functional Capacity Assessment (“RFC”) or in the testimony of the vocational expert.
Id. However, once an ALJ moves past step two of the sequential evaluation process, the severity
standard is no longer material to the analysis undertaken in the subsequent steps. See Jones v.
Bowen, 829 F.2d 524, 526 n.1 (5th Cir. 1987). Furthermore, the applicable regulations mandate
that the combined impact of all the claimant’s impairments must be considered throughout the
determination process. See 20 C.F.R. §§ 404.1523, 416.923. Therefore, the issue is whether the
ALJ actually considered the rheumatoid arthritis impairment when undertaking step five of the
analysis, as was required.
Upon reviewing the administrative record, the Court finds that the arthritis impairment was
included as part of the RFC, with “RA” being listed as the primary diagnosis, the limitations on
“handling” being imposed due to “RA pain and AM stiffness,” and the inclusion of a statement
that Plaintiff is “very stiff and feels very run down consistent with rheumatoid arthritis or lupus.”

5

SSA Admin. R., Physical RFC Assessment 545, 548, 552, ECF No. 13-1. Additionally, when
rendering his decision, the ALJ specifically discussed Plaintiff’s rheumatoid arthritis. SSA Admin.
R., Decision 15, ECF No. 12-3.
Lastly, while Plaintiff argues that posing hypothetical questions featuring more restrictive
limitations to the vocational expert on reaching may have disqualified Plaintiff from clerk or
cashier positions, such a change in questioning would not have led to a finding that Plaintiff was
unable to perform the occupation of inspector that was also included in the ALJ’s step-five
findings. Id. at 22.
Because there is evidence the ALJ considered the totality of Plaintiff’s impairments,
including her rheumatoid arthritis, during step five of the sequential evaluation process, any steptwo error is rendered “harmless because the ALJ considered these conditions in his RFC analysis.”
See Boothe v. Colvin, No. 3:12-CV-5127-D, 2013 WL 3809689, at *5 (N.D. Tex. July 23, 2013)
(Fitzwater, C.J.); see also Adams v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987) (denying the request
for remand where ALJ acknowledged an impairment in step two but then “went on to find,
pursuant to the fourth step of the sequential evaluation analysis, that appellant’s impairment did
not disable her from performing her past sedentary work”).
Accordingly, the Court finds that Plaintiff was not prejudiced by the determination that her
rheumatoid arthritis was a nonsevere impairment. Thus, Plaintiff’s objection regarding the ALJ’s
step-five analysis is OVERRULED.
IV.

CONCLUSION
Based on the foregoing analysis, the Court finds that the Magistrate Judge’s Report and

Recommendation in this case should be and is hereby ACCEPTED and the Plaintiff’s case is
DISMISSED with prejudice.

6

SO ORDERED this 27th day of April, 2017.

_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE

7