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Adair v. Berryhill

United States District Court, W.D. Oklahoma

March 13, 2018

SHERRY ADAIR, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration Defendant.

          ORDER

          DAVID L. RUSSELL UNITED STATES DISTRICT JUDGE.

         Before the Court is the Report and Recommendation of United States Magistrate Judge Bernard M. Jones recommending affirmance of the Commissioner's decision to deny Plaintiff disability insurance benefits ("DIB"). Doc. 17. Plaintiff objected, arguing that the Administrative Law Judge ("ALJ") failed to consider certain evidence regarding her obesity, use of a cane, and other ailments in finding Plaintiff not "disabled" under Title II of the Social Security Act, 42 U.S.C. §§ 405(g), 423(d)(1)(A). Doc. 18. Defendant responded that the ALJ's findings were supported by substantial evidence in the record. Doc. 21. Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court reviews the Report and Recommendation de novo in light of Plaintiff s objections and ADOPTS the Report in its entirety. The decision of the Social Security Administration ("SSA") is AFFIRMED.

         I. Background

         The ALJ issued a decision on February 20, 2015, that Plaintiff has not been disabled since she applied for DIB on May 28, 2013. Social Security Administration Record ("AR, " Doc. 10) 10. She followed the SSA's five-step disability evaluation. 20 C.F.R. § 404.1520(a); see Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). The ALJ first found that Plaintiff has not engaged in "substantial gainful activity since . . . [her] application date." AR 12. The second and third steps entailed ALJ analysis of Plaintiff s SSA-defined "severe impairments, " which include "status post left knee replacement; degenerative disc disease, plantar fasciitis, asthma, and depression." AR 12-14. Plaintiff also experiences non-severe obesity and hypertension. AR 12. Notably, the ALJ relied on Plaintiffs silence at the social security hearing regarding obesity and the absence of evidence to substantiate that obesity poses "any specific or quantifiable impact on [her] pulmonary, musculoskeletal, endocrine, or cardiac functioning." Id.

         Fourth, the ALJ found that Plaintiff possesses the residual function capacity ("RFC") to "perform a reduced range of sedentary work." AR 14.

[S]he can lift and/or carry up to 10 pounds; stand and/or walk for 2 hours in an 8-hour workday; and sit for about 6 hours in an 8-hour workday. She can occasionally stoop; must avoid more than occasional exposure to respiratory irritants; can understand and complete simple and some complex instructions as in semi-skilled work; can relate to others on a superficial work basis; and can adapt to a work situation.

Id. In reaching this conclusion, the ALJ considered Plaintiffs obesity (AR 12), testimony at the hearing (AR 25-62), remote history of knee replacement and degenerative disc disease (AR 66-85), psychological evaluation by Dr. Scott (AR 310-14), consultative examination by Dr. Christensen (AR 316-28), emergency room visits for foot pain (AR 329-41) and a respiratory infection (AR 342-49), visits to the Clinton Free Clinic (AR 297-308, 350-51), work record (AR 226), failure to seek free care for reported ailments during extensive periods (AR 14-18), and the State Agency's psychological and physical medical experts (AR 97-120).

         Lastly, the ALJ found that although Plaintiffs RFC prevents her from continuing past relevant work as a "dietary aide, home health aid, and babysitter, " there are "jobs that exist in significant numbers in the national economy" that Plaintiff can perform. AR 18-20 (quoting 20 C.F.R. §§ 416.965, 416.969, 416.969(a)). Specifically, Plaintiff can perform three jobs: thread separator, inspector, or cuff folder. AR 19. The ALJ therefore found Plaintiff not disabled and the Commissioner adopted this finding following Plaintiffs unsuccessful appeal.

         II. Standard of Review

         The Court reviews the Commissioner's decision to determine whether substantial evidence in the record supports the ALJ's factual findings and whether the ALJ applied the correct legal standards. Andrade v. Sec 'y of Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, " Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989), and "requires more than a scintilla, but less than a preponderance. " Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). "Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion." Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005) (quoting Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992)). The court "meticulously examine[s] the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (quoting Grogan, 499 F.2d at 1262). While the Court "considers] whether the ALJ followed the 'specific rules of law that must be followed in weighing particular types of evidence in disability cases, ' . . . [the Court] will not reweigh the evidence or substitute [its] judgment for the Commissioner's." Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (quoting Reyes v. Bowen, 845 F.2d 242, 244 (10th Cir. 1988)).

         III. Discussion

         Plaintiff alleges that the ALJ committed several errors in finding Plaintiff not disabled under the Social Security Act. The first concerns the treatment of obesity in the ALJ's Step 2 determination, and the rest concern Plaintiffs RFC. The Court will address each in turn and then Plaintiffs remaining objections to Judge Jones's Report and Recommendation.

         A. Obesity

         Plaintiff argues that the ALJ erred at Step 2 by finding Plaintiffs obesity not "severe" and by considering the condition in a "boilerplate and completely conclusory fashion." Plaintiffs Opening Brief, Doc. 12, at 3. First, the ALJ clearly considered obesity, and the Court declines ...


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