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Henson v. Berryhill

United States District Court, N.D. Oklahoma

March 30, 2017

ANGELA M. HENSON, Plaintiff,
NANCY A. BERRYHILL, [1]Acting Commissioner of the Social Security Administration, Defendant.



         Before 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.

         I. Background

         In her 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.

         Following 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.).

         The 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.

         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. Discussion of the Objections

         A. Objections to the ALJ's RFC Determination

         Plaintiff 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).

         There 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.).

         With 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.

         Plaintiff 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, ...

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