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McCause v. Berryhill

United States District Court, N.D. Oklahoma

July 26, 2017

DENCIE R. MCCAUSE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE

         Now before the Court is the Report and Recommendation (Dkt. #16) of Magistrate Judge Gerald B. Cohn recommending that the Court affirm the decision of the Commissioner of Social Security denying plaintiffs claim for disability benefits. Plaintiff has filed an objection (Dkt. # 17) to the Report and Recommendation.

         I.

         On August 6, 2012, plaintiff protectively filed an application for Title II disability benefits. Dkt. # 9, at 70. Plaintiff s application stated that he suffered from back pain and high blood pressure[1]that left him unable to work. Id. at 163. Plaintiffs claims were denied initially on October 4, 2012, and upon reconsideration on February 19, 2013. Id. at 70. Plaintiff requested a hearing before an Administrative Law Judge (ALJ), and that hearing was held on August 26, 2013. Id. at 98.

         Plaintiff appeared at the hearing and was represented by an attorney. Id. Plaintiff was 51 years old at the time of the hearing and testified that he had stopped working approximately 5 years earlier. Id. at 110. Plaintiff had been a self-employed plumber and licensed heating, ventilation, and air conditioning (HVAC) technician. Id. at 112. Plaintiff testified that he stopped working because he could no longer do his job due to lower back pain. Id. at 121-22. Plaintiff asserted that he was never pain free, but his medication helped. Id. at 117. Plaintiff testified that he could walk, but needed to stop and take breaks. Id. at 122-23. Plaintiff asserted that his pain had gradually increased over the previous 10 years and that now he could stand for approximately 20 minutes and sit for approximately 45 minutes. Id. at 127, 129. Plaintiff testified that he could lift a gallon of milk. Id. at 133.

         A vocational expert testified at the hearing. Id. at 140. The ALJ asked the vocational expert whether a person of plaintiff s age, work history, and educational background who was limited to occasional lifting up to 20 pounds, frequent lifting up to 10 pounds, standing and walking six hours of an eight hour workday, occasional kneeling, crawling, or crouching, and no stooping, could perform plaintiffs former position. Id. at 142-43. The vocational expert testified that the hypothetical person could not perform plaintiffs past work. Id. at 143. After being asked if there were other jobs in the national or regional economy that the hypothetical person could perform, the vocational expert identified three positions that would fulfill the hypothetical: small products assembler, bottling line attendant, and production bakery worker. Id. at 143-44. Plaintiffs counsel asked the vocational expert whether those three positions required any stooping, and the vocational expert confirmed that the positions required no stooping by definition. Id. at 145.

         On November 27, 2013, the ALJ issued a written decision finding that plaintiff was not disabled. Id. at 70-83. The ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date and that plaintiff had a severe impairment affecting his ability to work: degenerative disc disease of the spine. Id. at 72. The ALJ further found that plaintiff did not have an impairment or combination of impairments that was equivalent to one of those listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. Id. at 73. The ALJ then formulated plaintiff s residual functional capacity (RFC). The ALJ found the following:

After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to lift or carry up to 20 pounds occasionally and up to 10 pounds frequently, and can push or pull with either the upper or lower extremities consistent with the limitations on lifting and carrying. Claimant can stand or walk 6 hours out of an 8-hour workday and can sit for 2 hours out of an 8-hour workday or for longer periods if a full 6 hours of standing and walking is not required. In other words, the claimant has a light exertional residual functional capacity under Social Security Rules and Regulations, including 20 CFR Section 404. 1567(b). However, [claimant] cannot do work involving stooping, and only occasional kneeling, crawling, or crouching.

Id.

         In formulating plaintiff s RFC, the ALJ gave "substantial weight" to the opinions of the state agency medical consultants. Id. at 76. The ALJ also followed "a two-step process, " in which he first determined whether there was any underlying medically determinable physical or mental impairment that could reasonably be expected to produce plaintiffs pain or other symptoms, and second evaluated the intensity, persistence, and limiting effects of plaintiff s symptoms. Id. at 74. This second step included making a finding on the credibility of plaintiffs statements that were not substantiated by objective medical evidence. Id. The ALJ determined that plaintiffs medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that plaintiffs statements concerning the intensity, persistence, and limiting effects of the symptoms were not entirely credible because there were discrepancies between his reported symptoms and the objective medical evidence in the record. Id. at 75-76. The ALJ thoroughly summarized plaintiffs treatment history, including a consultative physical examination conducted on September 24, 2012 by Bryan Terry Smedley, D.O., several years of visits to multiple doctors at South Pointe Pain Management, two visits in 2009 to Gerald A. Snider, M.D., and two visits in 2013 to Quality Care Medical Center. Id. at 75-79. The ALJ also reviewed the objective medical evidence contained in the record, including a 2007 CT scan of the lumbar spine, a 2012 CT scan of the lumbar spine, 2013 x-rays of the lumbar spine and chest, and a 2013 CT scan of the lumbar spine. Id. at 79-80. The ALJ afforded "little evidentiary value" to the records of two chiropractors that treated plaintiff because the records were from non-acceptable sources. Id. at 77. The ALJ determined that, based on the entirety of plaintiff s medical record, plaintiff s pain was limiting, but not severe enough to preclude all types of work. Id. at 80. The ALJ explained that the medical record did not support plaintiffs complaints of escalating pain. For example, in 2007 when the original CT scan was conducted, plaintiff denied having any radiating leg pain. In the consultative examination with Dr. Smedley, plaintiff reported radiating leg pain but denied loss of bowel or bladder control. At the hearing, plaintiff complained of loss of bowel and bladder control. However, "[t]he imaging does not show any progression of degenerative disease. Indeed, the more recent imaging discussed above indicates that degenerative changes are less severe than first indicated in the 2007 CT scan." Id. The ALJ also noted that in the physical consultative exam plaintiff had negative straight leg raise tests in the sitting and supine positions, and while there was some decrease in lumbar spine range of motion, there was nothing to indicate the severity of pain plaintiffs asserts. Id. Thus, the ALJ determined that plaintiffs allegations were only partially credible due to their inconsistency with the medical record. Id. at 81.

         The ALJ concluded that plaintiff could not perform his past work as a plumber or HVAC technician, but that there were jobs that existed in significant numbers in the national economy that the claimant could have performed. Id. at 81-82. Therefore, the ALJ found that plaintiff was not disabled. Id. at 83.

         II.

         Without consent of the parties, the Court may refer any pretrial matter dispositive of a claim to a magistrate judge for a report and recommendation. However, the parties may object to the magistrate judge's recommendation within fourteen days of service of the recommendation. Schrader v. Fred A. Ray. M.D.. P.C.. 296 F.3d 968, 975 (10th Cir. 2002); Vegav. Suthers. 195 F.3d 573, 579 (10th Cir. 1999). The Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. ...


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