United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. LAGAN, Judge
before the Court is the report and recommendation (Dkt. # 18)
of Magistrate Judge Paul J. Cleary recommending that the
Court affirm the decision of the Commissioner of Social
Security denying plaintiff's claim for disability
benefits. Plaintiff has filed an objection to the report and
recommendation and asks the Court to remand the case for
further administrative proceedings. Dkt. # 19.
October 8, 2012, plaintiff protectively filed an application
for Title II disability benefits, alleging disability
beginning May 28, 2011. Dkt. # 10, at 75. Plaintiff's
claim was initially denied on February 11, 2013, and upon
reconsideration on May 2, 2013. Id. at 22. Plaintiff
requested a hearing before an Administrative Law Judge (ALJ),
and that hearing was held on November 26, 2013. Id.
appeared at the hearing and was represented by an attorney.
Id. Plaintiff was 35 years old, five feet six inches
tall, and 250 pounds at the time of hearing, and she
testified that she lived in a one-story home with her husband
and two children (ages 5 and 12). Id. at 42-43.
Plaintiff testified that her brother-in-law recently moved in
with her family to help her husband take care of plaintiff.
Id. at 44. Plaintiff last worked in 2011.
Id. She dropped out of high school after tenth
grade, but later received her GED. Id. Before the
date of her alleged disability onset, plaintiff had jobs in
customer service and telemarketing. Id. at 45-46.
Plaintiff testified that she could not work because she had
chronic pain syndrome in her legs and back, trouble
concentrating, depression, anxiety, and hypothyroidism.
Id. at 48-50. Plaintiff stated that she could not
squat and get back up, walk up a large flight of stairs, or
lift more than a gallon of milk. Id. at 53-54.
Plaintiff testified that she could not sit longer than 30-45
minutes, stand longer than 15 minutes, or walk a block.
Id. at 54. Plaintiff testified that she stopped
driving a few years ago because the condition in her legs and
the amount of medication she takes made driving unsafe.
Id. at 55, 62. Plaintiff testified that she does the
dishes and helps with cooking, but does not dust, sweep, mop,
vacuum, make her bed, or do laundry. Id. at 57-58.
Plaintiff stated that her husband does all the major grocery
shopping. Id. at 58. Plaintiff testified that she
has to spend about 50 percent of her day lying down or
reclining due to pain. Id. at 63. Overall, plaintiff
rated her pain as a 7 or 8 out of 10 depending on the day.
Id. at 61.
April 11, 2014, the ALJ issued a written decision finding
that plaintiff was not disabled. Id. at 22. The ALJ
found that plaintiff had not engaged in substantial gainful
activity since the alleged onset date and that she had the
following severe impairments: degenerative disc disease of
the spine, thyroid disorder, depression, anxiety, leg and hip
pain, and ear impairment. Id. at 24. The ALJ stated
that plaintiff “also suffers from obesity; however, a
review of the record does not reveal that [plaintiff's]
obesity would have more than a minimal limitation on [her]
ability to perform basic work activities and is therefore
considered a nonsevere impairment.” Id. The
ALJ further found that plaintiff did not have an impairment
or combination of impairments that was equivalent to one of
those listed in 20 C.F.R., Part 404, Subpart P, Appendix 1.
Id. at 25. The ALJ then formulated plaintiff's
residual functional capacity (RFC), taking into account the
medical evidence and testimony. Id. at 26. He found
that plaintiff had the RFC to:
lift and/or carry 10 pounds, stand and/or walk 4 hours out of
an 9-hour workday and sit for about 6 hours out of an 8-hour
workday. She could occasionally climb, bend, stoop, squat,
kneel, crouch and crawl, operate foot controls and reach
overhead, twist the torso, low noise, routine business and
commercial okay, use of the right ear for telephone work,
avoid cold work environment and with simple and routine work
with slight limitation in contact with the public, coworkers
and/or supervisors on a routine basis.
Id. The ALJ also found that plaintiff is afflicted
by “mild to moderate chronic pain” that is
noticeable at all times but does not prevent plaintiff from
remaining attentive and responsive in a work setting, and
that plaintiff's medication does not preclude her from
working in a position at the sedentary level of exertion.
formulating plaintiff's RFC, the ALJ considered the
credibility of plaintiff's claims regarding her pain and
limitations. The ALJ found that plaintiff's
“medically determinable impairments could reasonably be
expected to cause the alleged symptoms, ” but that
plaintiff's statements regarding the intensity,
persistence, and limiting effects of her symptoms were
“not entirely credible.” Id. at 28. The
ALJ found that plaintiff's described daily activities
were not as limited as would be expected given her
complaints. Id. He noted that plaintiff tries to do
household chores, dresses her youngest child, takes her
children to school, prepares some food, goes to the store for
short trips, and, despite some problems, is generally able to
care for herself. Id. at 29. The ALJ also found that
plaintiff's descriptions of her symptoms and limitations
were “inconsistent and unpersuasive.”
Id. at 33. After formulating plaintiff's RFC,
the ALJ determined that plaintiff could not perform any past
relevant work, but that plaintiff could perform other jobs
existing in significant numbers in the national economy.
Id. at 34.
October 14, 2015, the Appeals Council denied plaintiff's
request for review of the ALJ's decision. Id. at
5. Plaintiff thereafter sought judicial review, arguing that
the ALJ erred by failing to find plaintiff's obesity as a
severe impairment and to consider the combined effect of
obesity of plaintiff's spine and leg impairments. Dkt. #
11, at 6-7. Plaintiff also argued that the ALJ erred in his
credibility analysis by making conclusions that were not
based on the record, or contrary to the record, and by
failing to properly analyze plaintiff's complaints of
pain under Luna v. Bowen, 834 F.2d 161 (10th Cir.
1987). The Court referred the case to the magistrate judge,
who entered a report and recommendation (Dkt. #18)
recommending that the Court affirm the ALJ's decision.
Plaintiff objects to the report and recommendation, arguing
that the magistrate judge erred by excusing the deficiencies
in the ALJ's obesity and credibility findings. Dkt. # 19.
consent of the parties, the Court may refer any pretrial
matter dispositive of a claim to a magistrate judge for a
report and recommendation. However, the parties may object to
the magistrate judge's recommendation within 14 days of
service of the recommendation. Schrader v. Fred A. Ray,
M.D., P.C., 296 F.3d 968, 975 (10th Cir. 2002); Vega
v. Suthers, 195 F.3d 573, 579 (10th Cir. 1999). The
Court “shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
Court may accept, reject, or modify the report and
recommendation of the magistrate judge in ...