United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
CHARLES B. GOODWIN, UNITED STATES MAGISTRATE JUDGE
Timothy Harper 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
(“SSA”) denying Plaintiff's applications for
disability insurance benefits (“DIB”) under Title
II of the Social Security Act, 42 U.S.C. §§
401-434, and for Supplemental Security Income
(“SSI”) under Title XVI of the Social Security
Act, 42 U.S.C. §§ 1381-1383f The presiding District
Judge has referred this matter to the undersigned Magistrate
Judge for initial proceedings consistent with 28 U.S.C.
§ 636(b) and Rule 72(b) of the Federal Rules of Civil
Procedure. The Commissioner has answered and filed the
administrative record (Doc. No. 10, hereinafter “R.
'). The parties have briefed their positions,
and the case is now ready for decision. For the reasons set
forth below, the undersigned recommends that the
Commissioner's decision be affirmed.
filed his applications for DIB and SSI on October 10, 2012,
alleging a disability onset date of March 1, 2012. R. 12,
199-205, 206, 208-13, 303. Following denial of Plaintiff s
applications initially and on reconsideration, an
Administrative Law Judge (“ALJ”) held a hearing.
R. 30-83, 124-31, 136-41. The ALJ issued an unfavorable
decision on March 25, 2015. R. 12-24. The SSA Appeals Council
denied Plaintiffs request for review, making the ALJ's
unfavorable decision the final decision of the Commissioner.
R. 1-4; see also 20 C.F.R. §§ 404.981,
416.1481. Plaintiff then filed this action for judicial
relevant here, a person is “disabled” within the
meaning of the Social Security Act if he or she is
“unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last
for a continuous period of not less than twelve
months.” 42 U.S.C. § 1382c(a)(3)(A). The
Commissioner uses a five-step sequential evaluation process
to determine entitlement to disability benefits. See Wall
v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009); 20
C.F.R. §§ 404.1520, 416.920. At step one, the ALJ
found that Plaintiff had not engaged in substantial gainful
activity since March 1, 2012, the alleged onset date. R. 14.
At step two, the ALJ determined that Plaintiff had the severe
impairments of: methicillin-resistant staphylococcus aureus;
osteomyelitis, status-post fusion; alcohol-related seizure
disorder; and history of substance abuse. R. 14-17. At step
three, the ALJ determined that Plaintiff's impairments
did not meet or equal any of the presumptively disabling
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. R. 17-18.
next assessed Plaintiff's residual functional capacity
(“RFC”) based on all of his medically
determinable impairments. R. 18-22. The ALJ found that
Plaintiff has the RFC to perform sedentary work, except
can lift, carry, push or pull ten pounds occasionally and
less than ten pounds frequently. [Plaintiff] can stand or
walk for six hours total in an eight-hour workday, and he can
sit for six hours total in an eight-hour workday. [Plaintiff]
can never crawl or climb ladders, ropes or scaffolds.
[Plaintiff] occasionally can climb stairs, balance, kneel or
crouch. [Plaintiff] frequently can stoop. [Plaintiff] should
avoid vibrations, unprotected heights and hazardous
machinery. [Plaintiff] cannot repetitively turn, flex or
extend his neck.
R. 18; see 20 C.F.R. §§ 404.1567(a),
416.967(a) (defining “sedentary” work). At step
four, the ALJ found that Plaintiff was unable to perform any
past relevant work and that transferability of job skills was
not a material issue. R. 22-23.
five, the ALJ considered whether there are jobs existing in
significant numbers in the national economy that Plaintiff-in
view of his age, education, work experience, and RFC-could
perform. Taking into consideration the hearing testimony of a
vocational expert (“VE”) regarding the degree of
erosion to the unskilled sedentary occupational base that is
caused by Plaintiff's additional limitations, the ALJ
concluded that Plaintiff could perform sedentary unskilled
occupations such as food and beverage order clerk and
surveillance-system monitor, both of which offer jobs that
exist in significant numbers in the national economy. R.
23-24. On this basis, the ALJ concluded that Plaintiff had
not been under a disability, as defined in the Social
Security Act, from March 1, 2012, through the date of the
decision. R. 24.
review of the Commissioner's final decision is limited to
determining whether factual findings are supported by
substantial evidence in the record as a whole and whether
correct legal standards were applied. Poppa v.
Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009).
“Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Doyal v. Barnhart, 331 F.3d 758,
760 (10th Cir. 2003) (internal quotation marks omitted).
“A decision is not based on substantial evidence if it
is overwhelmed by other evidence in the record or if there is
a mere scintilla of evidence supporting it.” Branum
v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004)
(internal quotation marks omitted). The court
“meticulously examine[s] the record as a whole, ”
including any evidence “that may undercut or detract
from the ALJ's findings, ” “to determine if
the substantiality test has been met.” Wall,
561 F.3d at 1052 (internal quotation marks omitted). While a
reviewing court considers whether the Commissioner followed
applicable rules of law in weighing particular types of
evidence in disability cases, the court does not reweigh the
evidence or substitute its own judgment for that of the
Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272
(10th Cir. 2008).
appeal, Plaintiff contends that the ALJ's step-five
decision is not supported by substantial evidence because
there is an unexplained conflict between Plaintiff's
abilities and the jobs relied upon by the VE and ALJ as those
jobs are defined in the Dictionary of Occupational
Titles (“DOT”). See Pl.'s Br.
(Doc. No. 14) at 2-7 (citing DOT 209.567-014 (order clerk,
food and beverage), 1991 WL 671794 (4th rev. ed. 1991); DOT
379.367-010 (surveillance-system monitor), 1991 WL 673244)).
Specifically, Plaintiff argues that the “defined job
duties in the DOT do not appear to be jobs where there is
no turning of the neck.” Pl.'s Br. at 4.
Plaintiff then states that “[a]t the administrative
hearing, the VE was asked to consider a person who could
never move his neck.” Id. at 5
(emphasis added) (citing R. 77); see also Id. at 6
(characterizing the VE's testimony as opining on
“the demands of working with an immovable
neck” (emphasis added)). Plaintiff argues that, because
“the DOT does ...