United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY Y. ERIZZELL, CHIEF JUDGE.
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.
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].
Standard of Review
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)).
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; 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.
Failure to Find Error in the ALJ's Credibility
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.
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).
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.
Inclusion of Level-Three Reasoning Jobs in
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 ...