United States District Court, N.D. Oklahoma
DENCIE R. MCCAUSE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE
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
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 pressurethat 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.
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.
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.
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
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
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.
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.
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.