United States District Court, N.D. Oklahoma
ANGELA M. HENSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
OPINION AND ORDER
E. DOWDELL UNITED STATES DISTRICT JUDGE
the Court is the Report & Recommendation (R&R) (Doc.
23) of United States Magistrate Judge Frank H. McCarthy on
review of a decision of the Commissioner of the Social
Security Administration (Commissioner) denying the plaintiff,
Angela M. Henson, disability benefits. Judge McCarthy
recommends that the Court affirm the Commissioner's
decision finding plaintiff not disabled. Ms. Henson filed
timely Objections to the R&R, and she requests that the
Court reject the R&R and remand for further
administrative proceedings. (Doc. 24). Reviewing the
Objections de novo, the Court has considered the
Administrative Record (Doc. 11) (Record), the parties'
briefs, the R&R, and the plaintiff's Objections, and
concludes that the Commissioner's determination should be
affirmed and the R&R should be accepted.
August 2013 claims for disability benefits, plaintiff alleged
a disability onset date of May 17, 2012, which was one day
after a prior determination that she was not disabled. She
was 33 at the time on alleged onset, she had worked as a
nurse's aide, a car-hop at Sonic, and a machine operator.
She has a sixth grade education. She claims that she has been
unable to work since May 17, 2012, due to lower back injury,
depression, heart issues, “muscles cramp in middle
back, ” transient ischemic attacks, and anxiety/panic
attacks. (Record 94, 342). She had a mitral heart valve
replacement on March 1, 2012. She also claims that, as a
result of one of her medications, she must use the bathroom
every 10-15 minutes for four to five hours after taking the
medication. At the hearing, she further asserted that she
suffers from tailbone pain.
an October 15, 2014 hearing before the Administrative Law
Judge (ALJ), the ALJ rendered a decision dated December 16,
2014. (Record at 73-90). The ALJ determined that plaintiff
has a severe impairment of valvular heart disease.
(Id. at 78). However, the ALJ found that the
plaintiff's other alleged impairments (anxiety, back and
tailbone pain, depression and restroom problems due to side
effects of medication) were non-severe because those
conditions do not, singularly or in combination, result in
any significant limitation in the plaintiff's ability to
do basic work activities. (Id. at 78-79). The ALJ
concluded that the plaintiff has the residual functional
capacity (RFC) to perform light work, with the additional
limitation that she requires the option to alternate sitting
and standing every 30 minutes. (Id. at 80). Based on
the testimony of a vocational expert, the ALJ determined that
the plaintiff cannot perform her past work (id. at
84), but there are a significant number of jobs in the
national economy that she could perform considering her age,
education, work experience, and RFC. (Id. at 85).
Each of the jobs referenced by the ALJ included jobs in the
more restrictive sedentary exertional category, which
included trimmer, stuffer, and assembler. (Id.). As
a result, the ALJ determined at step five of the evaluation
process that plaintiff is not disabled. (Id.).
Appeals Council denied the plaintiff's request for review
(id. at 1-4), and this appeal followed. As noted,
Judge McCarthy recommends in his R&R that this Court
affirm the decision of the Commissioner. Plaintiff's
timely Objections (Doc. 24) are now before the Court.
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.
Discussion of the Objections
Objections to the ALJ's RFC Determination
asserts that the ALJ failed to explain the finding that some
impairments were non-severe, omitted limitations supported by
the record, failed to include the psychiatric review
technique (PRT) in the decision, and erred in assessing
plaintiff's credibility. The ALJ's written decision
reflects otherwise. Throughout the decision, the ALJ
explained that, while plaintiff reported her subjective
complaints of pain, there was a lack of objective medical
evidence to support the existence of functional limitations
upon plaintiff's ability to work as a result of those
conditions which the ALJ found to be non-severe.
(See Record 80-84).
is substantial evidence supporting the ALJ's RFC
determination, and it is clear from the decision that the ALJ
considered all evidence bearing on the conditions found to be
non-severe. While medical records reflect that plaintiff
complained of shortness of breath, occasional chest pain, and
occasional dizziness, those symptoms were not consistently
reported or confirmed by objective medical data or testing.
(See, e.g., Record 417, 420, 423, 425, 443, 446,
449, 451, 460, 465-67, 476, 479, 482, 525-31, 533, 538,
543-46, 619, 662, 684, 687, 697, 715, 729-30, 737, 744, 748,
785, 787, 792-93). In considering the plaintiff's reports
of back pain, the ALJ noted records reflecting the reports of
pain and tenderness in the lumbar spine, but accurately
recited from medical records that the plaintiff was able to
sit comfortably without acute distress, her gait and station
were normal, and her lower extremities were normal. (See,
e.g., Record at 82-83). The ALJ also considered other
evidence of a herniated disk but noted the same records
reflected that there was no nerve root compression, no
specific signs of weakness, or difficulty with standing.
(Id. at 83). The ALJ further noted that the physical
examination by Dr. Hale in October, 2013 did not support the
plaintiff's subjective complaints. (Id.).
respect to her reports of breathing problems, plaintiff
testified that the problem “comes and goes” and
that the condition was improving. (See Id. at 162).
There is evidence that plaintiff reported breathing problems
and shortness of breath at times (see, e.g., Id. at
458), but there is substantial record evidence supporting the
ALJ's determination that the problem was not severe and
did not require a work-related functional limitation, as such
complaints were not consistently raised.
further argues that Judge McCarthy failed to “address
her claim that the ALJ failed to consider her ability to work
on a ‘regular and continuous' basis” pursuant
to SSR 96-8p and Byron v. Heckler, 742 F.2d 1232,
1235 (10th Cir. 1984). (Doc. 24 at 2). However, the ALJ
specifically recognized the applicability of SSR 96-8p to the
RFC determination, noting that the RFC is an ability to do
work activities on a “sustained basis despite
limitations from impairments, ” and required
consideration of all impairments, ...