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Heath v. Berryhill

United States District Court, W.D. Oklahoma

March 7, 2018

TAMMIE ARLENE HEATH, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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. ”).[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 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.

         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.

         After 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.

         The ALJ 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 environmental limitations:

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.

R. 24-30.

         At step 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.

         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 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).

         ISSUES ON APPEAL

         In this 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 2-13.[2]

         ANALYSIS

         A. Step Two

         Plaintiff 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.

         The ALJ 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.”).

         B. ...


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