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Rodriguez v. Berryhill

United States District Court, W.D. Oklahoma

October 10, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         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.


         The Social Security Administration denied Plaintiff's applications for disability insurance benefits and supplemental security income initially and on reconsideration. Following an administrative hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 15-24). 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 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 September 8, 2013, the alleged disability onset date. (TR. 17). At step two, the ALJ determined Ms. Rodriguez had the following severe impairments: residuals from childhood leg fracture and degenerative disc disease of the spine. (TR. 17). 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. 18).

         At step four, the ALJ found that Plaintiff was not capable of performing her past relevant work. (TR. 22). The ALJ further concluded that Ms. Rodriguez retained the residual functional capacity (RFC) to:

[P]erform sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a) except she can sit for 7 hours in an 8-hour workday and stand and/or walk for a total of 1 hour in an 8-hour workday. She can never use her feet for the operation of foot controls and never climb ladders, ropes, or scaffolds. She can occasionally climb ramps and stairs as well as occasionally balance and stoop. She can never kneel, crouch, or crawl. She should be permitted to utilize a walker to get to and from the workstation.

(TR. 18).

         With this RFC, the ALJ made additional findings at step five. There, the ALJ presented several limitations to a vocational expert (VE) to determine whether there were other jobs in the national economy that Plaintiff could perform. (TR. 58-59). Given the limitations, the VE identified three jobs from the Dictionary of Occupational Titles (DOT). (TR. 60). The ALJ adopted the testimony of the VE and concluded that Ms. Rodriguez was not disabled based on her ability to perform the identified jobs. (TR. 23-24).


         On appeal, Plaintiff alleges the ALJ erred: (1) at step two, (2) at step three, and (3) in the evaluation of opinion evidence from a treating physician.


         This Court reviews the Commissioner's final “decision to determin[e] whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotation omitted).

         While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).

         V. STEP TWO

         At step two, the ALJ concluded that Plaintiff had severe impairments involving “residuals from childhood leg fracture and degenerative disc disease of the spine.” (TR. 17). According to Ms. Rodriguez, the ALJ failed to consider her tethered spinal cord as a severe impairment at step two. (ECF No. 15:17-23). At step two, plaintiff bears the burden of proof and must “demonstrate an impairment or combination of impairments that significantly limits the claimant's ability to do basic work activity.” Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997). Even if plaintiff had satisfied her burden to show that her tethered spinal cord was a severe impairment, the ALJ's step two finding which did not include the disorder as a severe impairment does not constitute reversible error. “Under the regulations, once an ALJ finds that a claimant has at least one severe impairment, he does not err in failing to designate other disorders as severe at step two, because at later steps the agency ‘will consider the combined effect of all of [plaintiff's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity.'” Barrett v. Astrue, 340 Fed.Appx.. 481, 484 (10th Cir. 2009) (unpublished) (quoting 20 C.F.R. § 404.1523). The ALJ “made an explicit finding that [plaintiff] suffered from [a] severe impairment[ ]. That was all the ALJ was required to do” at step two. Oldham v. Astrue, 509 F.3d 1254, 1256 (10th Cir. 2007).

         VI. STEP THREE

         At step three, an ALJ is required to determine whether a claimant's impairments are “equivalent to one of a number of listed impairments that the Secretary acknowledges as so severe as to preclude substantial gainful activity.” Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (quotation omitted). In so doing, he must ‚Äúdiscuss the ...

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