United States District Court, W.D. Oklahoma
DELILAH L. KERR, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
ERWIN UNITED STATES MAGISTRATE JUDGE
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).
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.
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.
THE ADMINISTRATIVE DECISION
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).
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).
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).
appeal, Plaintiff alleges the ALJ erred in the evaluation of
an opinion from a physician's assistant.