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Chandler v. Berryhill

United States District Court, N.D. Oklahoma

February 14, 2017

NANCY A. BERRYHILL[1], Acting Commissioner of Social Security, Defendant.


          CLAIRE V. LAGAN, Judge

         Now 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.


         On 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. at 36.

         Plaintiff 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.

         On 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. Id.

         In 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.

         On 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.


         Without 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. § 636(b)(1).

         The Court may accept, reject, or modify the report and recommendation of the magistrate judge in ...

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