United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
BERNARD M.JONES UNITED STATES MAGISTRATE JUDGE.
Cristy Bratten seeks judicial review of the Social Security
Administration's denial of disability insurance benefits
(DIB) and supplemental security income (SSI). This matter was
referred by United States District Judge Stephen P. Friot for
proposed findings and recommendations. See 28 U.S.C.
§ 636(b)(1)(B) and (C). For the reasons set forth below,
it is recommended that the Commissioner's decision be
filed applications for DIB and SSI alleging disability
beginning August 1, 2009. Administrative Record (AR), [Doc.
No. 12], 245-253. After the Social Security Administration
(SSA) denied her applications initially and on
reconsideration, Plaintiff requested a hearing before an
administrative law judge (ALJ). Administrative Law Judge
Howard O'Bryan, Jr. held a hearing on February 6, 2012,
AR 49-65, and thereafter issued an unfavorable decision. On
appeal, the Social Security Appeals Council remanded the case
and directed the subsequent ALJ to obtain evidence from a
vocational expert (VE) to clarify the effect of the assessed
limitations on the claimant's occupational base. AR 9.
Administrative Law Judge Kim D. Parrish held a second hearing
on May 20, 2014, AR 27-38, and issued an unfavorable decision
on August 11, 2014. AR 9-19. The Social Security Appeals
Council denied review. AR 1-3. Thus, the ALJ's decision
dated August 11, 2014, became the final decision of the
Commissioner and is the subject of this judicial review.
The ALJ's Decision
followed the sequential evaluation process required by agency
regulations. See Fischer-Ross v. Barnhart, 431 F.3d
729, 731 (10th Cir. 2005) (explaining five-step sequential
evaluations process); see also 20 C.F.R.
§§404.1520; 416.920. The ALJ first determined
Plaintiff had not engaged in substantial gainful activity
since the alleged onset date. AR 11.
two, the ALJ determined Plaintiff has two severe impairments:
schizoaffective disorder and adjustment disorder.
three, after a thorough discussion of the evidence, the ALJ
found that neither of Plaintiff's severe impairments
meets or medically equals any of the presumptively disabling
impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix
1. AR 15.
next determined Plaintiff's residual functional capacity
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional
limitations: work in relative isolation; limited contact with
coworkers and general public; routine rep [sic] work not
involving detailed instructions; and changes in work place
not to exceed 10% in frequency.
four, the ALJ found claimant could not perform her past
relevant work as cashier II, fast food worker or convenience
store worker. AR 18. At step five, based on the testimony of
a VE, the ALJ found Plaintiff capable of performing jobs
existing in significant numbers in the national economy
including floor waxer, window cleaner and housekeeper. AR 19.
Thus, at step five of the sequential evaluation, the ALJ
determined Plaintiff is not disabled.
Issues Presented for Judicial Review
alleges the ALJ erred in assessing her RFC. Pl.'s Brief,
[Doc. No. 14], 6-13. Plaintiff further contends the ALJ erred
at step two in failing to find obesity, diabetes and
headaches to be severe physical impairments. Pl.'s Brief,
13-17. Finally, Plaintiff contends the ALJ improperly
“cherry-picked” a third-party function report as
well as Plaintiff's own function report, and erred by
citing only the portions of those reports supportive of a
finding of nondisability.
Standard of Review
review of the Commissioner's final decision is limited to
determining whether the factual findings are supported by
substantial evidence in the record and whether the correct
legal standards were applied. See Poppa v. Astrue,
569 F.3d 1167, 1169 (10th Cir. 2009). “Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Doyal
v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003)
(quotation omitted). A decision is not based on substantial
evidence if other evidence in the record overwhelms it, or if
there is a mere scintilla of evidence supporting it.
Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir.
2004). The court “meticulously examine[s] the record as
a whole, including anything that may undercut or detract from
the ALJ's findings to determine if the substantiality
test has been met.” Wall v. Astrue, 561 F.3d
1048, 1052 (10th Cir. 2009) (citations omitted). While the
court considers whether the ALJ followed the applicable ...