United States District Court, N.D. Oklahoma
TYRONE D. JOHNSON, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE
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.
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.
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.
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
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.
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 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 ...