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Sturdevant v. Berryhill

United States District Court, N.D. Oklahoma

March 30, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         I. Background

         Before 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.

         Judge 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.

         II. Standard of Review

         Pursuant 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. 1991)).

         III. Specific Objections

         A. Conflict between agency doctors' RFC and ALJ's RFC

         Although 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.

         Notwithstanding 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).

         B. Obesity and Right Shoulder Impairment

         Plaintiff 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).

         Judge 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.

         C. Third ...

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