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Gotcher v. Berryhill

United States District Court, N.D. Oklahoma

March 31, 2017

GINA GOTCHER, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          T. Lane Wilson United States Magistrate Judge.

         Plaintiff Gina Gotcher seeks judicial review of the decision of the Commissioner of the Social Security Administration denying her claims for disability insurance benefits under Titles II and XVI of the Social Security Act (“SSA”), 42 U.S.C. §§ 416(i), 423, and 1382c(a)(3). In accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before a United States Magistrate Judge. (Dkt. 11). Any appeal of this decision will be directly to the Tenth Circuit Court of Appeals.

         ISSUES

         On appeal, plaintiff raises three points of error, all related to the formulation of her residual functional capacity (“RFC”). Specifically, she contends: (1) that the ALJ erred in weighing five treating source opinions and one agency consultative examiner opinion; (2) that the ALJ should have “incorporated [these opinions'] findings into the RFC adopted for Plaintiff”; and (3) that the ALJ should have re-contacted these physicians and other sources to clarify any ambiguities. (Dkt. 18).

         STANDARD OF REVIEW

         In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). Substantial evidence is more than a scintilla but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See id. The Court's review is based on the record, and the Court will “meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Id. The Court may neither re-weigh the evidence nor substitute its judgment for that of the Commissioner. See Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Even if the Court might have reached a different conclusion, if supported by substantial evidence, the Commissioner's decision stands. See White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2002).

         ANALYSIS

         ALJ's Decision

         After reviewing plaintiff's lengthy record, and considering her testimony, the ALJ found that plaintiff retained the RFC to,

lift and carry 10 pounds frequently and 20 pounds occasionally with pushing and pulling limitations consistent with lifting and carrying limitations. She can stand and walk for 6 hours in an 8-hour workday and sit for 6 to 8 hours in an 8-hour workday. She can occasionally climb stairs and ramps but cannot climb ladders, ropes or scaffolding. She can occasionally balance, bend, stoop, kneel, crouch, and crawl. She can finger, handle and feel on a frequent basis bilaterally. She can perform simple, repetitive tasks. She can have superficial contact with coworkers and supervisors but should not work in close proximity to coworkers. She should avoid all exposure to hazardous or fast machinery, unprotected heights, driving, pools of water, or other similar type hazards.

(R. 13).

         In his decision, the ALJ summarized plaintiff's testimony and function reports, finding plaintiff's testimony and subjective function report statements consistent with each other. (R. 14-15). The ALJ combined his discussion of plaintiff's credibility with his discussion of the objective evidence, highlighting several detailed instances throughout the record that were “inconsistent with [plaintiff's] alleged symptoms and limitations.”[2] (R. 17). Among other things, the ALJ discussed large gaps in treatment, instances of noncompliance with prescribed medication, inconsistent reports to treating physicians about her impairments, reports to treating physicians and other treating sources that she “was doing fairly well, ” inconsistent reports of plaintiff's employment throughout the record, findings of possible malingering during mental health testing, and the fact that plaintiff could complete a “double major” and receive good grades in college.[3](R. 15-26). The ALJ found that in combination, these facts reduced plaintiff's overall credibility and established that she was not as impaired as she claimed.[4] Id.

         Further, the ALJ linked his RFC findings to specific evidence:

The claimant continued to report difficulty with word finding, word substitution, expressive aphasia, and attention/concentration (42F and 43F); however, neurology examination on March 5, 2014, revealed the claimant was oriented times three with intact recent and remote memory. Additionally it was noted she had recovered quite well from surgery with the exception of struggling with words at times (42F/17). Given the above evidence in its entirety, I find the claimant can perform simple, repetitive tasks. She can have superficial contact with coworkers and supervisors but should not work in close proximity to coworkers.
While the claimant was found to have some gait instability and impaired coordination (33F/11 and 42F), the majority of treatment notes reflect the claimant had normal strength, sensory, reflexes, gait, and balance (24F/20-22, 34F/1-2 and 4-7, 35F, and 42F). Moreover, she was independent for self-care and able to attend college, garden, care for elderly parents, do basic household chores, cook simple meals, care for her dog and cat, and do physical activity as tolerated (4F, 5F, 6F, 11F, 23F/17, and Testimony), as noted in further detail above. Given this evidence, I find the claimant can lift and carry 10 pounds frequently and 20 pounds occasionally. She can stand and walk for 6 hours in an 8-hour workday and sit for 6 to 8 hours in an 8-hour workday. She can occasionally bend, stoop, kneel, crouch, and crawl.
As noted above, the claimant only reported her hands felt achy one time to treating physicians and had no further complaints or treatment for hand pain afterwards (23F/17). Therefore, I find the claimant can finger, handle and feel on a frequent basis bilaterally. Given the claimant has a history of seizures, I find the claimant can only occasionally balance and climb stairs/ramps. However, she cannot climb ladders, ropes or scaffolding. Additionally, she should avoid all exposure to hazardous or fast machinery, unprotected heights, driving, pools of water, or other similar type hazards.

(R. 23).

         RFC/Opinion Weight

         Plaintiff states that “[t]he only issue here on appeal is the weight to be assigned to [her] treating sources and their professional opinions.” (Dkt. 18 at 8) (emphasis in original). Plaintiff argues that the ALJ failed to give proper weight to the opinions of treating physicians Jon M. Johnson, M.D., and Tara Heeney, D.O., and to the opinions of treating nurse practitioner Cynthia Cattaneo, A.P.R.N., and mental health counselors Wayne Slaven, B.S.W. and Bill Yeager, M.S. Plaintiff further argues that the ...


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