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McAlister v. Berryhill

United States District Court, N.D. Oklahoma

March 2, 2017

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



         Now before the Court is the Report and Recommendation (Dkt. # 17) of Magistrate Judge T. Lane Wilson recommending that defendant's decision to deny plaintiff's application for disability benefits be affirmed. Plaintiff has filed an objection (Dkt. # 18) to the report and recommendation, and she asks the Court to reverse the defendant's decision and remand the case for further administrative proceedings. The time to file a response to plaintiff's objection has expired, and defendant has not filed a response.


         On November 17, 2011, plaintiff filed an application for disability benefits alleging that she was disabled as of January 31, 2010. Dkt. # 11-5, at 2-5. Plaintiff's application was denied initially and on reconsideration, and she requested a hearing before an administrative law judge (ALJ). Dkt. # 11-3, at 2-7; Dkt. # 11-4, at 14-23.

         A hearing was held on June 14, 2013, and plaintiff was represented by counsel at the hearing. Dkt. # 11-2, at 57. Plaintiff orally moved to amend the date of onset of disability from January 31, 2010 to July 7, 2012, and her request was granted. Id. at 61-62. Plaintiff testified that her primary physical problems were carpal tunnel syndrome, fibromyalgia, degenerative disc disease, and inflammatory arthritis. Id. at 63. She frequently changes positions due to pain in her legs, but she spends at least half of her day sitting or lying down. Id. at 66. Plaintiff's hands frequently fall asleep and she has swelling in her hands, and she sometimes has problems with grip strength. Id. at 70-71. Plaintiff takes pain pills and muscle relaxers, and she is often tired and has a hard time concentrating. Id. at 73. She testified that she was diagnosed with major depressive disorder, and she has problems with concentration and memory. Id. at 77. The ALJ called a vocational expert (VE), Julie Harvey, to testify about plaintiff's work history, and Harvey testified that a hypothetical claimant limited to sedentary work with additional limitations could not perform plaintiff's past relevant work. Id. at 84. However, the hypothetical claimant could work as an addresser, tube operator, or document processor. Id. at 85.

         The ALJ held a supplemental hearing and heard testimony from an impartial medical expert, Anne Winkler, M.D., and a different VE, Lisa Cox. Dr. Winkler testified that plaintiff suffered from hypertension, mild degenerative disc disease, and some psychological issues, but that there was insufficient objective medical evidence to confirm a diagnosis of fibromyalgia, inflammatory arthritis, or carpal tunnel syndrome. Id. at 41. As to physical restrictions, Dr. Winkler found that plaintiff could lift or carry up to 30 pounds occasionally and 20 pound frequently, and plaintiff could stand or walk up to seven hours out of an eight hour workday. Id. at 42. Plaintiff's counsel examined Dr. Winkler about the need for additional testing, and Dr. Winkler explained that she could not confirm a diagnosis of fibromyalgia, inflammatory arthritis, or carpal tunnel syndrome without physical examination findings. Id. at 43.

         On January 17, 2014, the ALJ entered a written decision denying plaintiff's claim for disability benefits. Plaintiff alleged a date of onset of disability of July 7, 2012. Dkt. # 11-2, at 15. The ALJ found that plaintiff had severe impairments of atrial fibrillation and hypertension, obesity, depression, and post-traumatic stress disorder (PTSD), but plaintiff's complaints of borderline intellectual functioning, iron anemia, and acid reflux were non-severe and the objective medical evidence was insufficient to confirm a diagnosis of fibromyalgia or inflammatory arthritis. Id. at 15-16. Plaintiff did not have an impairment or combination of impairments that rose to the level of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 16. The ALJ did find that plaintiff had moderate difficulties with concentration, persistence, and pace, as well as moderate difficulties with social functioning. Id. at 17. The ALJ found that plaintiff had the residual functional capacity (RFC) to do the following work:

After careful consideration of the entire record, the undersigned finds that the claimant has the [RFC] to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). Specifically, the undersigned finds the claimant can occasionally lift and/or carry 10 pounds and frequently up to 10 pounds. She can stand and/or walk at least 2 hours out of an 8-hour workday and sit for at least 6 hours out of an 8-hour workday. She is limited to simple, repetitive task [sic] with the ability to relate to supervisors and coworkers only superficially and no work with the general public.

Id. at 18. The ALJ considered plaintiff's testimony but gave it little weight, because plaintiff's subjective complaints were not supported by objective medical evidence. Id. at 20. The ALJ summarized Dr. Winkler's opinions and the findings of a consultative examiner, David Wiegman, M.D. Id. at 19-21. Dr. Wiegman's opinions were given some but not great weight, because the ALJ found that Dr. Wiegman's opinions were not fully supported by his objective findings. Id. at 22. Plaintiff's treating physician, Rita Westenhaver, D.O., diagnosed fibromyalgia and inflammatory arthritis, but Dr. Winkler found no testing to support either diagnosis. Id. The ALJ also considered the mental RFC assessment provided by Denise LaGrand, Ph. D, but the ALJ gave reduced weight to Dr. LaGrand's findings due to her heavy reliance on plaintiff's subjective complaints. Id. at 23. Based on plaintiff's RFC, the ALJ found that plaintiff could not return to her past relevant work, but she could perform the jobs of addresser, tube operator, and document processor. Id. at 25-26. Based on the VE's testimony, the ALJ found that there were jobs in significant numbers in the national economy that plaintiff could perform with her RFC, and he found plaintiff not disabled at step five. Id. at 26.

         Plaintiff sought review of the denial of her claim for disability benefits by the Appeals Council, but the Appeals Council found no basis to review the ALJ's decision. Id. at 2-3. On July 13, 2015, plaintiff filed this case seeking judicial review of the ALJ's decision, and the matter was referred to a magistrate judge for a report and recommendation. The magistrate judge recommends that the Court affirm defendant's decision to deny plaintiff's claim for disability benefits. Dkt. # 17.


         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 whole or in part. Fed.R.Civ.P. 72(b).


         The Social Security Administration has established a five-step process to review claims for disability benefits. See 20 C.F.R. ยง 404.1520. The ...

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