United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, UNITED STATES DISTRICT JUDGE.
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.
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
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).
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).
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. (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).
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).
Standard of Review
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)).
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).
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."). "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).
established framework in the Tenth Circuit for analyzing the
credibility of testimony regarding disabling ...