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Harper v. Berryhill

United States District Court, W.D. Oklahoma

November 28, 2017

TIMOTHY HARPER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          CHARLES B. GOODWIN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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. ').[1] 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.

         PROCEDURAL HISTORY

         Plaintiff 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 review.

         ADMINISTRATIVE DECISION

         As 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.

         The ALJ 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 Plaintiff

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.

         At step 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.

         STANDARD OF REVIEW

         Judicial 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).

         ANALYSIS

         In this 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 ...


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