United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL UNITED STATES DISTRICT JUDGE
the Court is the Report & Recommendation (R&R) (Doc.
19) of United States Magistrate Judge Paul J. Cleary on
review of a decision of the Commissioner of the Social
Security Administration (Commissioner) denying the plaintiff,
Josephine Sturdevant, disability benefits. Judge Cleary
recommends that the Court affirm the Commissioner's
decision finding plaintiff not disabled. Ms. Sturdevant filed
a timely Objection to the R&R, and she requests that the
Court reject the R&R and remand for further
administrative proceedings. (Doc. 20). Reviewing the
Objection de novo, the Court has considered the
Administrative Record (Doc. 11) (Record), the parties'
briefs, the R&R, and the plaintiff's Objection, and
concludes that the Commissioner's determination should be
affirmed and the R&R should be accepted.
Cleary accurately summarized the background of
plaintiff's disability claim and the decision of the
Administrative Law Judge (ALJ) (Doc. 19 at 3-4), and the
Court adopts that summary. Plaintiff objects to the R&R
on four grounds, which will be addressed below.
Standard of Review
to Fed.R.Civ.P. 72(b)(3), “[t]he district judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter
to the magistrate judge with instructions.” The
Court's task of reviewing the Commissioner's decision
involves determining “whether the factual findings are
supported by substantial evidence in the record and whether
the correct legal standards were applied.” Doyal v.
Barnhart, 331 F.3d 758, 760 (10th Cir. 2003).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Id. “It is ‘more than
a scintilla, but less than a preponderance.'”
Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir.
2013) (quoting Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007)). The Court will “neither reweigh the
evidence nor substitute [its] judgment for that of the
agency.” Martinez v. Barnhart, 444 F.3d 1201,
1204 (10th Cir. 2006) (quoting Casias v. Sec'y of
Health & Human Servs., 933 F.2d 799, 800 (10th Cir.
Conflict between agency doctors' RFC and ALJ's
the ALJ stated that he was adopting the RFC assessments of
state agency physicians Eisenhauer, M.D. and LMW, M.D., the
ALJ's RFC differed from those doctors' RFC with
respect to lifting restrictions. The ALJ assessed
plaintiff's RFC as follows: “less than the full
range of medium work . . . She can lift/carry or push/pull 50
pounds occasionally and 25 pounds frequently. She has the
occasional use of her right leg for operation of foot
controls. In an 8-hour workday, she can stand/walk for 2
hours [and] sit for 6 hours.” (Record 18). With respect
to lifting, the ALJ's RFC was generally consistent with
much of plaintiff's hearing testimony. (See
id. 44, 50). In contrast, the RFC assessments of
both agency doctors included lifting/carrying 20 pounds
occasionally and lifting/carrying 10 pounds frequently
(id. at 82, 91). Plaintiff argues that the ALJs
inconsistency “highlights the fact the ALJ's RFC is
unsupported by substantial evidence.” (Doc. 20 at 1).
The Court disagrees.
the lifting limitations, the ALJ's hypothetical to the
vocational expert limited plaintiff to sedentary jobs, and
the vocational expert cited three jobs that do not require
lifting beyond the weights identified by the agency
physicians. (Record 71). The three jobs identified by the
vocational expert were food order clerk, Dictionary of
Occupation Titles (DICOT) 209.567-014, charge account clerk,
DICOT 205.367-014, and addresser, DICOT 209.587-010.
(Id.). Each of those are identified as
“Sedentary Work” which includes “[e]xerting
up to 10 pounds of force occasionally . . . and/or a
negligible amount of force frequently, ” and
“sitting most of the time, but may involve walking or
standing for brief periods of time.” See 1991
WL 671794 (food order clerk); 1991 WL 671715 (charge account
clerk); 1991 WL 671797 (addresser). Accordingly, the Court
agrees with Judge Cleary that any error by the ALJ in
assigning weight to the agency physicians' RFCs was
harmless. (Doc. 19 at 5). Likewise, the Court agrees with
Judge Cleary's determination regarding Dr. LMW.
(Id. at 5, fn.4).
Obesity and Right Shoulder Impairment
contends that the ALJ failed to identify any limitations from
plaintiff's obesity, even though the ALJ found obesity to
be a severe impairment. The ALJ recognized that obesity
“is now evaluated under the criteria . . . in SSR
02-1p, ” requiring consideration of the impact of
obesity upon plaintiff's ability to perform work related
activities. (Record 17-18). While he found it a severe
impairment, the ALJ also found that her obesity “does
not appear to be a contributory factor to her physical
activity limitations or to her ability to do basic work
activities.” (Id. at 18).
Cleary appropriately noted that the ALJ rightfully focused on
plaintiff's functional limitations rather than on her
status as an obese person, and cited supporting authority.
(Doc. 19 at 6). The Court agrees with that analysis and finds
no error in the ALJ's findings regarding obesity. The ALJ
also found plaintiff's right shoulder impairment was
severe. (Record 17). Plaintiff asserts that the ALJ failed to
identify any functional limitations related to her right
shoulder impairment other than to limit lifting with her
right arm. (Doc. 20 at 5). Thus, plaintiff asserts that the
ALJ “should have limited plaintiff's reaching,
pushing, and pulling due to her chronic right shoulder
pain.” (Id.). The ALJ identified medical
records in which plaintiff was treated for right shoulder
pain in 2012, but was subsequently found to have a normal
range of motion in her shoulders in 2013. (Record 19). The
ALJ's restrictions on lifting with the right arm and
overall RFC are supported by substantial evidence. The Court
does not find any error with respect to this issue.