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Garcia v. Berryhill

United States District Court, N.D. Oklahoma

December 21, 2017

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



         Before the Court is the Report & Recommendation ("R&R") (Doc. 14) of United States Magistrate Judge Gerald B. Cohn on review of a decision of the Commissioner of the Social Security Administration ("Commissioner") denying Dianna Machelle Garcia disability benefits. Judge Cohn recommends that the Court affirm the Commissioner's decision finding plaintiff not disabled. Plaintiff filed a timely Objection to the R&R in which she requests that the Court reject the R&R and remand for further administrative proceedings. (Doc. 15). The Court has reviewed the record and issues de novo.

         I. Background

         On February 18, 2011, Plaintiff applied for disability benefits under Title II and XVI of the Social Security Act. (R. 10). She alleges disability beginning April 16, 2010. (Id). On July 11, 2012, the Administrative Law Judge (ALJ) found that Plaintiff was not disabled. (R. 7-21). Her subsequent request for review by the Appeals Council was denied on September 17, 2013. (R. 1). Upon appeal to the federal district court, Magistrate Judge Paul J. Cleary reversed and remanded the case for further proceedings before an ALJ. (R. 458). Judge Cleary instructed the ALJ to reevaluate Plaintiffs residual functional capacity (RFC) and "provide rationale with specific references to the evidence of record in support of the assessed limitations." (Id). Judge Cleary further noted that the ALJ would obtain supplemental vocational expert testimony. (Id).

         In a hearing held on July 8, 2015, Plaintiff testified that she experienced extreme pain while working as a cashier at Wal-Mart-so much so that she "could barely make it through one transaction" and would "go in the bathroom and cry" (R. 404). Due to the pain, she took a leave of absence from that job in April 2010 and has not returned. (Id). She testified that she spends the majority of each day sitting on a couch with her feet up or in bed with a heating pad. (R. 415). She stated that she lies down approximately three times a day for at least twenty to forty minutes. (R. 418). According to her testimony, she is in pain all of the time (R. 418), though doing water aerobics twice a week has helped with the pain. (R. 412).

         A vocational expert testified that if Plaintiff s statements regarding her limitations and restrictions were fully credible, Plaintiff would not be able to perform any of her past relevant work. (R. 425). The vocational expert was unable to identify any jobs at the sedentary level that Plaintiff could perform, assuming Plaintiff s testimony was fully credible. (R. 426).

         On August 27, 2015, the ALJ issued the Decision that is the subject of this proceeding. (R. 371-395). In his Decision, the ALJ determined that Plaintiff has three severe impairments-degenerative disc disease, hypertension, and obesity. (R. 377). The ALJ determined that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the listing criteria. (R. 380). Based in part on a reduced credibility determination, the ALJ concluded that Plaintiff has the RFC to perform light work with some limitations.[1] (R. 381-82, 386). The ALJ determined that Plaintiff is able to perform her past relevant work as a cashier at the light level of exertion, as well as other jobs existing in the national economy. (R. 387-88). In light of the foregoing, the ALJ concluded that Plaintiff is not disabled. (R. 389).

         Plaintiffs request for review by the Appeals Council was denied on March 14, 2016. (R. 360-363). Plaintiff then filed this action on April 27, 2016. (Doc. 2).

         II. Standard of Review

         Pursuant to Fed.R.Civ.P. 72(b)(3), "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." The Court's task of reviewing the Commissioner's decision involves determining "whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989)). "It is 'more than a scintilla, but less than a preponderance.'"Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (quotingLax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)). The Court will "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Martinez v. Barnhart, 444 F.3d 1201, 1204 (10th Cir. 2006) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)).

         III. Discussion

         Plaintiff argues that the ALJ made significant omissions in his discussion of the medical evidence that affected his determinations regarding the Plaintiffs credibility and, thus, her RFC. (Doc. 9 at 3-10 of 14; Doc. 15 at 9 of 19). In his R&R, Judge Cohn found that the omitted evidence is not significantly probative because the evidence does not demonstrate Plaintiff s job-related limitations. (Doc. 14 at 12). He concluded that the ALJ's credibility determination is supported by substantial evidence, and he recommends affirming the Commissioner's denial of disability benefits. (Id. at 19). Plaintiff contends that Judge Cohn applied an incorrect standard in determining what evidence is probative. (Doc. 15 at 7 of 19).

         "The ALJ must consider the credibility of [the claimant's] subjective testimony about her pain, and also its effect on her ability to work, as part of the determination of her residual functional capacity." Madron v. Astrue, 311 Fed.App'x 170, 175 (10th Cir. 2009). See also Social Security Ruling C'SSR") 96-7p, 1996 WL 374186, at *2 ("[W]henever the individual's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must make a finding on the credibility of the individual's statements based on a consideration of the entire case record.").[2] "Credibility determinations are peculiarly the province of the finder of fact, and [the court] will not disrupt such determinations when supported by substantial evidence." Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quoting Diaz v. Sec'y of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990)). However, "findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings." Madron, 311 Fed.App'x at 176 (quoting Kepler, 68 F.3d at 391).

         The established framework in the Tenth Circuit for analyzing the credibility of testimony regarding disabling ...

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