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Vann v. Berryhill

United States District Court, N.D. Oklahoma

December 27, 2017

HARRY JOSEPH VANN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          FRANK H. MCCARTHY, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Harry Joseph Vann, seeks judicial review of a decision of the Commissioner of the Social Security Administration denying Social Security disability benefits.[1] The matter has been referred to the undersigned United States Magistrate Judge for report and recommendation.

         Standard of Review

         The role of the court in reviewing the decision of the Commissioner under 42 U.S.C. § 405(g) is limited to a determination of whether the record as a whole contains substantial evidence to support the decision and whether the correct legal standards were applied. See Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001); Winfrey v. Chater, 92 F.3d 1017 (10th Cir. 1996); Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The court may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Casias v. Secretary of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991). Even if the court would have reached a different conclusion, if supported by substantial evidence, the Commissioner's decision stands. Hamilton v. Secretary of Health & Human Servs., 961 F.2d 1495 (10th Cir. 1992).

         Background

         Plaintiff was 48 years old on the alleged date of onset of disability and 50 on the date of the ALJ's denial decision. He has a ninth grade education, but is unable to read and write. Plaintiff formerly worked as a kitchen helper and a cook's helper. He claims to have been unable to work since March 23, 2012, as a result of a learning disability, depression, anxiety, and lumbar sprain.

         The ALJ's Decision

         The ALJ determined that Plaintiff retains the residual functional capacity (RFC) to perform medium work as defined in 20 C.F.R. § 404.15');">1567(c) and 416.967(c), except he is limited to the performance of simple tasks and cannot perform jobs that require him to read or write in the performance of his job duties. [R. 23]. Relying on the testimony of a vocational expert, the ALJ found that one of the same age, education, and work background as Plaintiff with the foregoing RFC, could perform the jobs of kitchen helper or cook's helper, as those jobs were actually performed by Plaintiff. In addition, based on the testimony of a vocational expert, the ALJ determined that there are a significant number of jobs in the national economy that Plaintiff could perform with his limitations. The case was thus decided at step four of the five-step evaluative sequence for determining whether a claimant is disabled with an alternative step five finding. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five steps in detail).

         Plaintiff's Allegations

         Plaintiff asserts that the ALJ failed to consider and weigh the opinions of Dr. Kumar; the physical RFC is not supported by substantial evidence; the mental RFC is not supported by substantial evidence; the ALJ's step four finding is not supported by substantial evidence and is legally flawed; and the Commissioner failed to sustain her burden at step five.

         Analysis

         Dr. Kumar's Opinion

         Plaintiff asserts that the ALJ's decision should be reversed because the ALJ did not mention the notation made by Laju Kumar, M.D. about Plaintiff's use of a cane. According to Plaintiff, “Dr. Kumar opined Plaintiff's use of a cane was medically necessary.” [Dkt. 15');">15, p. 2]. The undersigned finds that the failure of the ALJ to mention Dr. Kumar's comment does not provide a basis for remand of this case.

         On September 3, 2013, Plaintiff saw Dr. Kumar at Indian Health Care Resource Center. The visit was a follow up of a complaint of low back pain. In the notation of the subjective comments, Dr. Kumar recorded that Plaintiff's back pain was a lot better, that Plaintiff is using his cane “when back hurts off and on, more in the am.” [R. 429]. After a fairly normal examination, [R. 430], Dr. Kumar remarked, ”medically necessary to use a cane when in back pain.” [R. 431]. At the hearing, Plaintiff was represented by counsel. There was no mention of Plaintiff's use of a cane at the hearing before the ALJ. Where, as here, the claimant is ...


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