United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. BAGAN DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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).
Social Security Administration has established a five-step
process to review claims for disability benefits.
See 20 C.F.R. § 404.1520. The ...