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Kinney v. Berryhill

United States District Court, N.D. Oklahoma

July 26, 2017

FLOYD WILLIAM KINNEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          OPINION AND ORDER

          FRANK H. MCCARTHY, United States Magistrate Judge

         Plaintiff, Floyd William Kinney, seeks judicial review of a decision of the Commissioner of the Social Security Administration denying disability benefits.[1] In accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before a United States Magistrate Judge.

         Standard of Review

          The role of the court in reviewing the decision of the Commissioner under 42 U.S.C. § 405(g) is limited to a determination of whether the decision is supported by substantial evidence and whether the decision contains a sufficient basis to determine that the Commissioner has applied the correct legal standards. See Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001); Winfrey v. Chater, 92 F.3d 1017 (10th Cir. 1996); Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 197');">305 U.S. 197, 229 (1938)). The court may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Casias v. Secretary of Health & Human Servs., 993 F.2d 799, 800 (10th Cir. 1991). Even if the court would have reached a different conclusion, if supported by substantial evidence, the Commissioner's decision stands. Hamilton v. Secretary of Health & Human Servs., 961 F.2d 1495 (10th Cir. 1992).

         Background

         Plaintiff was 49 years old on the alleged date of onset of disability and 51 on the date of the denial decision. Plaintiff completed 10th grade and past work experience includes semi-truck driver. Plaintiff claims to have become disabled as of January 28, 2012 due to heart attack, diabetes, hypertension, depression, and chronic obstructive pulmonary disease (COPD). [R. 321].

         The ALJ's Decision

         The ALJ found that Plaintiff has severe impairments relating to myocardial infarction; COPD; diabetes mellitus with neuropathy; hypertension; affective disorder; and anxiety disorder. [R. 15]. The ALJ determined that Plaintiff has the residual functional capacity to perform a range of light work with normal breaks. Plaintiff can occasionally climb, balance, bend or stoop, kneel, crouch, or crawl. Plaintiff should avoid work environments where he would be exposed to extreme temperatures; concentrations of dust, fumes, gases, and poor ventilation; or wetness and humidity. He can do simple repetitive tasks and moderately complex tasks allowing semi-skilled work with superficial contact with co-workers, supervisors, and the public. [R. 23].

         Plaintiff's Allegations

          Plaintiff asserts that the ALJ failed to give greater weight to the expert medical opinion of Nurse Practitioner Gina Francisco, A.P.R.N. -C.N.P., which resulted in a flawed residual functional capacity (RFC). [Dkt. 19, p. 5].

         Analysis

         Plaintiff argues that the ALJ erred in failing to give greater weight to the expert medical opinion of Nurse Practitioner Gina Francisco, a treating medical source and primary care provider. [Dkt. 19, p. 5]. On April 20, 2012 Ms. Francisco submitted a letter addressing Plaintiffs impairments and functional limitations. [R. 472]. Ms. Francisco indicated Plaintiff suffered significant permanent limitations as a result of cardiac damage which limited him to 10 to 15 minutes of non-strenuous exertion with no lifting or straining. Plaintiff could only sit for 1 to 2 hours but needed move frequently for circulatory support and to prevent edema. On August 27, 2012 Ms. Francisco completed a Medical Source Statement - Physical which stated Plaintiff could lift/carry less than five pounds frequently; stand/walk continuously for less than 15 minutes without a break; sit continuously without a break for one hour; sit 3 hours throughout an 8 hour work day with usual breaks; push/pull was limited because of "cardiovascular compromise with peripheral neuropathy." Plaintiff could never climb, but could occasionally stoop, kneel, crouch, and crawl. Plaintiff should avoid extreme heat, cold, and hazards. When Plaintiff experienced chest pain he should lie down one to two times during an 8 hour work day for ten to fifteen minutes. Ms. Francisco opined that Plaintiff was "disabled due to his respiratory and cardiovascular compromise and is an appropriate candidate for disability. I highly support his application." [R. 534-535].

         Ms. Francisco's assessment of the Plaintiffs symptoms and impairments were more restrictive than what was supported by the record. As a health care professional and treating source, Plaintiff argues that the ALJ failed to properly weigh or reasonably evaluate the opinion of Ms. Francisco. Further, that the ALJ's reasons for rejecting ...


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