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Kerr v. Berryhill

United States District Court, W.D. Oklahoma

August 30, 2017

DELILAH L. KERR, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          SHONT. ERWIN UNITED STATES MAGISTRATE JUDGE

         Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration denying Plaintiff's applications for benefits under the Social Security Act. The Commissioner has answered and filed a transcript of the administrative record (hereinafter TR.). The parties have consented to jurisdiction over this matter by a United States magistrate judge pursuant to 28 U.S.C. § 636(c).

         The parties have briefed their positions, and the matter is now at issue. Based on the Court's review of the record and the issues presented, the Court REVERSES AND REMANDS the Commissioner's decision.

         I. PROCEDURAL BACKGROUND

         The Social Security Administration denied Plaintiff's application for supplemental security benefits and disability insurance benefits initially and on reconsideration. Following two administrative hearings, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 16-28). The Appeals Council denied Plaintiff's request for review. (TR. 1-3). Thus, the decision of the ALJ became the final decision of the Commissioner.

         II. THE ADMINISTRATIVE DECISION

         The ALJ followed the five-step sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. §§ 404.1520 & 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since June 30, 2012, the alleged disability onset date. (TR. 18). At step two, the ALJ determined Ms. Kerr had the following severe impairments: fibromyalgia, sensitivity to sunlight, and status-post lumbar surgery. (TR. 18). At step three, the ALJ found that Plaintiff's impairments did not meet or medically equal any of the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1 (TR. 20).

         At step four, the ALJ concluded that Ms. Kerr had the residual functional capacity (RFC) to:

[P]erform light work as defined in 20 CFR 404.1567(b) and 416.967(b) as follows: She can occasionally lift/carry 20 pounds, and frequently 10 pounds; stand/walk at least six hours in an eight-hour workday; sit at least six hours out of an eight-hour workday; she should not have to climb ladders, ropes, and scaffolds; she should not work at unprotected heights; she can no more than frequently balance, stoop, kneel crouch or crawl; and she should not work in intense sunlight (but can work in an indoor environment).

         (TR. 20).

         With this RFC, the ALJ found that Plaintiff was capable of performing her past relevant work as a pharmacy technician. (TR. 26). Even so, the ALJ made alternate findings at step five. At a hearing on September 11, 2015, the ALJ presented the limitations set forth in the RFC, as outlined above, to a vocational expert (VE) to determine whether there were other jobs in the national economy that Plaintiff could perform. (TR. 67-68). Given the limitations, the VE identified two jobs from the Dictionary of Occupational Titles-mail clerk and electrical assembler. (TR. 68). The ALJ adopted the testimony of the VE and concluded at step five that Ms. Kerr was not disabled based on her ability to perform the identified jobs. (TR. 27).[1]

         III. ISSUES PRESENTED

         On appeal, Plaintiff alleges the ALJ erred in the evaluation of an opinion from a physician's assistant.

         IV. ...


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