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Johnson v. Berryhill

United States District Court, N.D. Oklahoma

March 8, 2017

TYRONE D. JOHNSON, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          CLAIRE V. EAGAN UNITED STATES DISTRICT JUDGE

         Now before the Court is the report and recommendation (Dkt. # 18) of Magistrate Judge T. Lane Wilson recommending that the Court affirm defendant's decision to deny plaintiff's claim for disability benefits. Plaintiff has filed an objection (Dkt. # 19) to the report and recommendation and an errata (Dkt. # 20), and he 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.

         I.

         On January 1, 2011, plaintiff filed an application for Title II disability benefits, and he alleged a date of onset of disability of April 23, 2009. Dkt. # 12, at 108. Plaintiff's application was denied initially and on reconsideration, and he requested a hearing before an administrative law judge (ALJ). Dkt. # 12, at 51-55, 67-70.

         A hearing was held on September 25, 2012, and plaintiff was represented by counsel at the hearing. The ALJ clarified that the only application at issue was a Title II application for disability benefits and plaintiff's counsel understood that the date last insured was a significant issue. Id. at 29. Plaintiff's counsel stated that the date last insured was December 31, 2010. Id. Plaintiff was 38 years old at the time of the hearing and he had completed the 11th grade. Id. at 30-31. Plaintiff had formerly worked as a commercial truck driver, but he began to experience problems with his vision and could no longer drive. Id. at 32. Plaintiff sought treatment for his vision problems and he was diagnosed with glaucoma. Id. at 34. Plaintiff lost much of his peripheral vision, he had two surgeries on his left eye, and he testified that his right eye is deteriorating. Id. at 35-36. He suffers from headaches when he goes into public, and he has difficulty performing household chores and activities due to his vision problems. Id. at 39-40. The ALJ called a vocational expert (VE) to testify. The ALJ posed a hypothetical question to VE as to whether a hypothetical claimant, who could perform the full range of sedentary, light, and medium work with 20/20 vision in his right eye and 20/60 vision in his left eye with corrective lenses, could perform some of plaintiff's past relevant work. Id. at 44-45. The VE testified that the hypothetical claimant could perform some of plaintiff's past relevant work, and could also work as a dishwasher, hand packer, arcade attendant, cafeteria attendant, clerical mailer, addresser, and table worker. Id. at 46-47. The ALJ asked the VE to assume that the hypothetical claimant had the same limitations and that plaintiff's testimony was fully credible, and the VE testified that the hypothetical claimant could not perform any job due to the lack of useful vision. Id. at 48. Upon questioning by plaintiff's counsel, the VE explained that he deviates from the Dictionary of Occupational Titles (DOT) on vision restrictions, because he has actual experience placing persons who are blind or visually impaired into jobs and he finds that “useful vision” is better indication of a person's ability to work than the concepts of near and far visual acuity used by the DOT. Id. The VE further testified that the DOT does not place restrictions on near and far visual acuity. Id. at 49.

         On October 12, 2012, the ALJ issued a written decision denying plaintiff's claim for disability benefits. Plaintiff met the insured status requirement until December 31, 2010, and he alleged onset of disability as of April 23, 2009. Id. at 18. Plaintiff had the severe impairments of glaucoma, bilateral cataracts, and status post vitrectomy of the left eye, but the ALJ did not find that plaintiff had any mental impairments. Id. No impairment or combination of impairments rose to the level to the level of a listed impairment under 20 CFR Part 404, Subpart P, Appendix 1. Id. at 19. The ALJ found that plaintiff had the following residual functional capacity (RFC):

After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the [RFC] to perform a full range of work at all exertional levels but with the following nonexertional limitations: He had visual limitations of best corrected vision of 20/20 in the right eye and 20/60 in the left eye.

Id. The medical evidence showed that plaintiff had an eye examination on November 20, 2009 and had 20/20 vision in his right eye and 20/60 vision in his left eye with corrective lenses. Id. at 20. Plaintiff had surgery to repair a peeling membrane on his left eye, but he did not seek treatment for vision problems from March 2010 to October 2011. Id. The ALJ found that the medical evidence did not support plaintiff's testimony concerning the severity of his vision problems, and he determined that plaintiff was only marginally limited in the performance of daily activities. Id. Plaintiff was unable to return to his past relevant work as an usher, general laborer, janitor, or truck driver, but there were jobs available in sufficient numbers in the national economy that plaintiff could perform with his RFC. Id. at 21. The ALJ determined that the VE's testimony was “consistent with the information contained in the [DOT], and plaintiff could work as a dishwasher, hand packager, arcade attendant, cafeteria attendant, clerical worker, and table worker. Id. Thus, plaintiff was found not disabled at step five.

         Plaintiff sought review of the denial of his claim for disability benefits by the Appeals Council, but the Appeals Council found no basis to review the ALJ's decision. Id. at 4-6. On July 28, 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. # 18.

         II.

         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).

         III.

         The Social Security Administration has established a five-step process to review claims for disability benefits. See 20 C.F.R. § 404.1520. The Tenth Circuit has outlined the five step process:

Step one requires the agency to determine whether a claimant is “presently engaged in substantial gainful activity.” [Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004)]. If not, the agency proceeds to consider, at step two, whether a claimant has “a medically severe impairment or impairments.” Id. An impairment is severe under the applicable regulations if it significantly limits a claimant's physical or mental ability to perform basic work activities. See 20 C.F.R. § 404.1521. At step three, the ALJ considers whether a claimant's medically severe impairments are equivalent to a condition “listed in the appendix of the relevant disability regulation.” Allen, 357 F.3d at 1142. If a claimant's impairments are not equivalent to a listed impairment, the ALJ must consider, at step four, whether a claimant's impairments prevent [him] from performing ...

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