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Duncan v. Berryhill

United States District Court, E.D. Oklahoma

March 13, 2018

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, [1] Defendant.



         The claimant Vickie Lynette Duncan requests judicial review of a denial of benefits by the Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g). She appeals the Commissioner's decision and asserts that the Administrative Law Judge (“ALJ”) erred in determining she was not disabled. For the reasons discussed below, the Commissioner's decision is hereby AFFIRMED.

         Social Security Law and Standard of Review

         Disability under the Social Security Act is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment[.]” 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Social Security Act “only if h[er] physical or mental impairment or impairments are of such severity that [s]he is not only unable to do h[er] previous work but cannot, considering h[er] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy[.]” Id. § 423 (d)(2)(A). Social security regulations implement a five-step sequential process to evaluate a disability claim. See 20 C.F.R. §§ 404.1520, 416.920.[2]

         Section 405(g) limits the scope of judicial review of the Commissioner's decision to two inquiries: whether the decision was supported by substantial evidence and whether correct legal standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997). Substantial evidence is “‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); see also Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). The Court may not reweigh the evidence or substitute its discretion for the Commissioner's. See Casias v. Secretary of Health & Human Services, 933 F.2d 799, 800 (10th Cir. 1991). But the Court must review the record as a whole, and “[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); see also Casias, 933 F.2d at 800-01.

         Claimant's Background

         The claimant was born on September 21, 1961, and was fifty-four years old at the time of the most recent administrative hearing (Tr. 218). She completed tenth grade, and has worked as a driver, convenience store manager, sales clerk, cashier II, and routine office clerk (Tr. 247, 517). The claimant alleges she has been unable to work since December 25, 2009, due to bipolar disorder, manic depressive disorder, emphysema, chronic pulmonary obstructive disorder (“COPD”), acid reflux, and anxiety (Tr. 247).[3]

         Procedural History

         The claimant applied for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and for supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85, on April 15, 2011 (Tr. 218-27). Her applications were denied. ALJ Bernard Porter conducted an administrative hearing and found that the claimant was not disabled in a written opinion dated January 24, 2013 (Tr. 17-33). The Appeals Council denied review, but this Court granted the Commissioner's Motion to Reverse and Remand for Further Administrative Proceedings Pursuant to Sentence Four of the Social Security Act in Case No. CIV-14-451-FHS-KEW, and remanded the case to the ALJ on June 3, 2015 (Tr. 738-40). While her first applications were pending, the claimant filed new applications on August 21, 2014, and on August 22, 2014, which were also denied (Tr. 880-900). Having received this Court's June 2015 remand, the Appeals Council consolidated the claimant's claims and remanded the case to an ALJ on June 12, 2015 (Tr. 742-45). On remand, ALJ Deirdre O. Dexter held an administrative hearing and determined that the claimant was not disabled in a written opinion dated July 29, 2016 (Tr. 443-66). The claimant did not file written exceptions to the Appeals Council challenging the ALJ's July 2016 decision, and the Appeals Council did not assume jurisdiction, so the ALJ's July 2016 decision is the final decision of the Commissioner for purposes of this appeal. See 20 C.F.R. §§ 404.984(d), 416.1484(d).

         Decision of the Administrative Law Judge

         The ALJ made her decision at step five of the sequential evaluation. She found that the claimant had the ability to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with occasional climbing ramps and stairs, stooping, and crouching, and never climbing ropes, ladders, or scaffolds, kneeling, or crawling (Tr. 454). The ALJ further found the claimant should never be exposed to unprotected heights or moving mechanical parts, and should not do a job involving concentrated exposure to dust, odors, fumes or other pulmonary irritants, extreme heat, extreme cold, humidity, or wetness (Tr. 454). As to the claimant's psychologically based limitations, the ALJ found she could understand, remember, and carry out detailed but uninvolved instructions, make simple work related decisions, interact occasionally with supervisors as required to receive work instructions, work in proximity to co-workers, but should have no more than occasional direct work interaction with them, and could never interact with the general public (Tr. 454). The ALJ then concluded that although the claimant could not return to her past relevant work, she was nevertheless not disabled because there was work that she could perform in the national economy, e. g., inspector packer, electrical accessory assembler, and small product assembler (Tr. 464-66).


         The claimant contends that the ALJ erred by failing to develop the record regarding her COPD through an additional pulmonary function study. In support, she specifically asserts that Program Operations Manual System (“POMS”) DI 24540.001, issued by the Social Security Administration, required additional pulmonary function testing, and that the ALJ's reasons for not obtaining a second study were insufficient and factually inaccurate. The Court finds these contentions unpersuasive for the following reasons.

         The ALJ found the claimant had the severe impairments of COPD, degenerative joint disease of the bilateral knees, modest degenerative changes in the bilateral hips, hypertension, obesity, posttraumatic stress disorder, bipolar disorder, and substance abuse disorder (Tr. 446). The medical evidence as to the claimant's breathing impairment reveals that providers at Mercy Health Clinic consistently prescribed her a bronchodilator between December 2009 and November 2014 (Tr. 1208-225, 1260). A nurse practitioner at Mercy Health Clinic ...

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