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Nickel v. Berryhill

United States District Court, W.D. Oklahoma

November 28, 2017

MEGAN NICKEL, Plaintiff,
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 application 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 AFFIRMS the Commissioner's decision.


         Initially and on reconsideration, the Social Security Administration denied Plaintiff's application for disability insurance benefits. Following an administrative hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 24-42). 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. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since November 7, 2013, the alleged disability onset date. (TR. 26). At step two, the ALJ determined Ms. Nickel had the following severe impairments: status post partial resection of cerebellar astrocytoma; headaches; disequilibrium syndrome; left ear hearing loss; status post cerebellar stroke; lupus arthritis; fibromyalgia; chronic pain syndrome; and depressive disorder. (TR. 26). 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. 27).

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

[P]erform light work as defined in 20 CFR 404.1567(b), that does not require climbing of ladders, ropes, or scaffolds; that does not require more than frequent balancing; that does not require exposure to hazards; and that consists of simple, routine tasks.

(TR. 29). With this RFC, the ALJ concluded that Plaintiff was capable of performing her past relevant work of fast food worker or cashier II. (TR. 40).

         Even though the ALJ concluded that Ms. Nickel could perform her past relevant work, he 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. 85-86). Given the limitations, the VE identified three jobs from the Dictionary of Occupational Titles (DOT). (TR. 86). The ALJ adopted the testimony of the VE and concluded that Ms. Nickel was not disabled based on her ability to perform the identified jobs. (TR. 42).


         On appeal, Plaintiff alleges the ALJ erred in failing to: (1) include limitations in the RFC related to severe impairments at step two and (2) properly evaluate an opinion from a consultative 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).


         Ms. Nickel alleges that the RFC failed to include specific limitations tied to her severe impairment of “status-post partial resection of cerebellar astrocytoma” (brain surgery). (ECF No. 13:3-13). According to Plaintiff, effects of her brain surgery included headaches and dizziness, which: (1) rendered her unable to “frequently balance” as set forth in the RFC and (2) required her to lie down for an amount of time which would preclude substantial gainful activity. (ECF No. 13:3-13). Ms. Nickel also argues that the ALJ erred in his duty of explanation at step two, which impacted his step four analysis. The Court finds no merit to these arguments.

         A. ALJ's Duty in Assessing the RFC

         Once a claimant's impairments are deemed severe at step two, the ALJ has a duty to discuss their impact throughout the remainder of the disability determination. 20 C.F.R. § 404.1545(a)(2). Indeed, in formulating the RFC, the ALJ must discuss the combined effect of all the claimant's medically determinable impairments, both severe and nonsevere. See Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013). However, the presence of an impairment, albeit severe, does not necessarily equate to corresponding limitations in the RFC. Cavalier v. Colvin, 2014 WL 7408430, at *2 (N.D. Okla. 2014).

         The RFC need only include such limitations as the medical record substantially supports. See Kirkpatrick v. Colvin, 663 F. App'x. 646, 650 (10th Cir. 2016) (“Clearly, an ALJ doesn't commit error by omitting limitations not supported by the record”); Arles v. Astrue, 438 F. App'x. 735, 740 (10th Cir. 2011) (rejecting plaintiff's claim a limitation should have been included in his RFC because “such a limitation has no support in the record”). In assessing an individual's RFC, the ALJ must consider the limitations and restrictions imposed by a claimant's severe ...

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