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Cain v. Berryhill

United States District Court, N.D. Oklahoma

March 9, 2018

PEGGY ANNETTE CAIN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          GREGORY Y. ERIZZELL, CHIEF JUDGE.

         Before the court is the Report and Recommendation of the United States Magistrate Judge reviewing the decision of the Commissioner of the Social Security Administration to deny disability benefits to Peggy Annette Cain [Doc. #20]. The Magistrate Judge recommends the Commissioner's denial of benefits be affirmed. Plaintiff Cain objects to the Report and Recommendation [Doc. #21]. For the reasons set forth below, the court respectfully reverses the Commissioner's denial of benefits, and remands this case for further proceedings in accordance with this order.

         I. Procedural Background

         Peggy Annette Cain applied for disability benefits beginning on July 26, 2011. The Social Security Administration (“SSA”) initially denied Cain's claim, and again upon reconsideration. As a result, Cain filed a written request for rehearing, and a hearing was held before Administrative Law Judge (“ALJ”) John W. Belcher on January 21, 2015. On May 14, 2015, the ALJ issued a written decision finding that Cain was not under a disability as defined in the Social Security Act, and denying disability benefits. See [Doc. #10');">10, pp. 17-27]. The SSA Appeals Council denied Cain's request for review on August 12, 2016. Because the SSA Appeals Council denied Cain's request, the decision of the ALJ constitutes the final decision for purposes of this appeal. See 20 C.F.R. §§ 404.981, 416.1481. On October 31, 2017, U.S. Magistrate Judge Frank H. McCarthy issued a Report and Recommendation recommending that the decision of the Commissioner that Cain was not disabled be affirmed. See [Doc. #20]. Cain objected to the Report and Recommendation on November 28, 2017, requiring review by this court. See [Doc. #21].

         II. Standard of Review

         Pursuant to Fed.R.Civ.P. 72(b)(3), the court “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.” In the disability benefits context, de novo review is limited to 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 (10');">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 (10');">10th Cir. 1989)). It is more than a scintilla, but less than a preponderance. Lax v. Astrue, 10');">1080');">489 F.3d 10');">1080, 10');">1084 (10');">10th Cir. 2007). On review, the court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” White v. Barnhart, 287 F.3d 903, 905 (10');">10th Cir. 2001) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10');">10th Cir. 1991)).

         III. Analysis

         Cain objects to the Report and Recommendation on three (3) separate bases: (1) the failure to find error in the ALJ's credibility analysis in light of medical evidence; (2) the failure to find error in the inclusion of level-three reasoning jobs in the ALJ's “step-five” analysis[1]; and (3) the failure to find error in the omission of findings regarding the sufficiency of work in the national economy in the ALJ's “step-five” analysis. The court will separately consider each objection.

         A. Failure to Find Error in the ALJ's Credibility Analysis

         Cain first objects to the Report and Recommendation based on a failure to find error in the ALJ's credibility analysis in light of the medical evidence. [Doc. #21, p. 1]. However, Cain includes no argument in support of the objection.

         The Tenth Circuit applies waiver principles developed in other litigation contexts to social security cases. See Berna v. Chater, 10');">101 F.3d 631');">10');">101 F.3d 631, 632 (10');">10th Cir. 1996). “[W]aiver may result from the disability claimant's failure to (1) raise issues before the magistrate judge, (2) object adequately to the magistrate judge's recommendation, (3) preserve issues in the district court as a general matter, or (4) present issues properly to [the Tenth Circuit].” Id. at 632-33 (internal citations omitted) (quoting James v. Chater, 96 F.3d 1341, 1344 (10');">10th Cir. 1996)). “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Prop., 10');">1057');">73 F.3d 10');">1057, 10');">1060 (10');">10th Cir. 1996).

         Cain did not brief her objection to the Report and Recommendation's failure to find error based on the ALJ's credibility analysis, and thus has not satisfied the specificity required to preserve an issue for de novo review by this court. Thus, the issue is waived, and the court will not consider this objection.

         B. Inclusion of Level-Three Reasoning Jobs in “Step-Five” Analysis

         Cain objects to the Report & Recommendation's reliance on two jobs-document specialist and surveillance system monitor-both of which require a reasoning level of three based on the Dictionary of Occupational Titles (“DOT”). See DOT §§ 249.587-018 and 379.367-010');">10. Cain argues that the inclusion of jobs requiring level-three reasoning is inconsistent with the ALJ's residual functional capacity (“RFC”) finding that “[Cain] can perform simple routine repetitive tasks, contact with ...


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