United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE
Tammie Arlene Heath appeals the denial of her claims for
disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) under Titles
II and XVI of the Social Security Act (“SSA”).
Chief United States District Judge Joe Heaton 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 of the SSA has answered and filed the
administrative record. (Doc. No. 8, 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.
protectively filed her applications for DIB and SSI on
January 28, 2014, alleging a disability onset date of August
31, 2013. R. 21, 166-75, 213. Following denial of
Plaintiff's applications, both initially and on
reconsideration, Plaintiff requested a hearing before an
administrative law judge (“ALJ”), which was held
on August 4, 2015. R. 37-60. Plaintiff and a vocational
expert (“VE”) testified. The ALJ issued an
unfavorable decision on August 28, 2015. R. 21-31. The SSA
Appeals Council denied Plaintiff's request for review,
making the ALJ's unfavorable decision the final decision
of the Commissioner. R. 1-6; see also 20 C.F.R.
§§ 404.981, 416.1481. Plaintiff then filed this
action for judicial review.
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.
determining that Plaintiff met the insured status
requirements of the Act through December 31, 2018, the ALJ
found at step one that Plaintiff had not engaged in
substantial gainful activity since August 31, 2013, her
alleged onset date. R. 23. At step two, the ALJ determined
Plaintiff had the following severe impairments: degenerative
disc disease, asthma, and obesity. R. 23. At step three, the
ALJ determined that Plaintiffs 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. 24.
next assessed Plaintiffs residual functional capacity
(“RFC”) based on all of her medically
determinable impairments, determining that Plaintiff can
perform sedentary work with these additional postural and
The claimant can occasionally climb, balance, stoop, kneel,
crouch, and crawl. The claimant is to avoid concentrated
exposure to dusts, fumes, gases, odors, and poor ventilation.
four, the ALJ, relying on the testimony of the VE, determined
that Plaintiff is capable of performing her past relevant
work as a motor-vehicle dispatcher, billing clerk,
administrative assistant, and bookkeeper. R. 30. On this
basis, the ALJ concluded that Plaintiff had not been under a
disability, as defined in the Social Security Act, from
August 31, 2013, through the date of the decision. R. 30.
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
ALJ's decision is supported by substantial evidence in
the record as a whole. 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).
action for judicial review, Plaintiff contends that the ALJ
(1) erred in not recognizing certain impairments as severe at
step two of the sequential evaluation; (2) erred in
evaluating Plaintiff's RFC, including by (a) failing to
properly evaluate and weigh opinions by medical sources, (b)
failing to consider evidence of pain and diminished strength
in Plaintiff's legs, (c) failing to properly analyze
Plaintiff's credibility, and (d) failing to assess the
impact of Plaintiff's obesity on her other impairments.
See Pl.'s Br. (Doc. No. 15) at
contends that the ALJ erred at step two of the sequential
evaluation by failing to recognize Plaintiff's complaints
of radiating leg pain and decreased leg strength as
“severe impairments.” Id. at 6-7.
addressed Plaintiff's leg pain and decreased leg strength
as symptoms of Plaintiff's degenerative disc disease, an
impairment the ALJ did find to be severe. R. 25-29.
Even if these conditions would have been more properly
categorized as separate impairments, it is well settled that
reversal is generally not appropriate when an ALJ fails to
identify an impairment at step two but, as a result of having
identified some other severe impairment, continues with the
sequential evaluation. See, e.g., Smith v.
Colvin, 821 F.3d 1264, 1266-67 (10th Cir. 2016);
Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir.
2016) (“[F]ailure to find a particular impairment
severe at step two is not reversible error when the ALJ finds
that at least one other impairment is severe.”).