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Singley v. Berryhill

United States District Court, N.D. Oklahoma

March 20, 2018

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



         Before the Court is the Report & Recommendation (“R&R”) (Doc. 20) of United States Magistrate Judge Gerald B. Cohn on review of a decision of the Commissioner of the Social Security Administration (“Commissioner”) denying the Plaintiff, Joy Lynn Singley, disability benefits. Judge Cohn recommends that the Court affirm the Commissioner's decision finding Plaintiff not disabled. Plaintiff filed a timely Objection (Doc. 21) to the R&R, and the Commissioner filed a Response (Doc. 22). The Court has reviewed the record and issues de novo.

         I. Background

         Plaintiff originally filed a claim for disability insurance benefits on April 2, 2013, and for supplemental security income benefits on March 3, 2014. In both applications, she alleged disability beginning on July 29, 2012. Her claims were denied initially and on reconsideration. A hearing before the Administrative Law Judge (ALJ) was held on November 24, 2014. On February 4, 2015, the ALJ entered findings that are the subject of this proceeding. (See R. 141-151). The Appeals Council denied review on May 11, 2016. (R. 1).

         Plaintiff claims to be unable to work due to anxiety and panic attacks. (R. 312). The ALJ determined that her chronic obstructive pulmonary disease (COPD), depression, and anxiety were severe impairments, but that these impairments did not meet or medically equal the severity of a listed impairment. (R. 143-44). The ALJ found that Ms. Singley had the residual functional capacity (“RFC”) to perform medium work, except that she should avoid concentrated exposure to fumes, odors, and gas, and that she should be limited to simple, repetitive tasks. (R. 145). He found that she could relate only superficially with supervisors and co-workers, and that she should not work with the public. (Id.).

         The ALJ found that Ms. Singley is unable to perform her past relevant work as a cashier/checker, but that she could perform jobs that exist in significant numbers in the national economy. (R. 149-50). A vocational expert testified that a person of plaintiff's age, education, work experience, and RFC would be able to perform the requirements of representative occupations such as hand packager and sorter. (R. 150). In light of the foregoing, the ALJ found that Plaintiff was not disabled. (R. 151).

         II. Standard of Review

         Pursuant to Fed.R.Civ.P. 72(b)(3), “[t]he district judge 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.” The Court's task of reviewing the Commissioner's decision involves 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 (10th Cir. 2003). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. “It is ‘more than a scintilla, but less than a preponderance.'” Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (quoting Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)). The Court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Martinez v. Barnhart, 444 F.3d 1201, 1204 (10th Cir. 2006) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)).

         III. Discussion

         A. Diagnosis from Family & Children's Services

         Plaintiff first contends that the ALJ did not properly assess the Plaintiff's mental impairments because he failed to consider her diagnosis of major depressive disorder, recurrent with psychotic features. This diagnosis appears throughout Plaintiff's records with Family and Children's Services (“FCS”). It appears on FCS records from April 15, 2013 (R. 493); October 11, 2013 (R. 564, 586); May 6, 2014 (R. 542, 549, 592); January 15, 2014 (R. 553); and August 1, 2014 (R. 596). Most of these records were entered and/or signed by a nurse practitioner (see R. 548-549, 553, 564, 586-587, 590, 592-593, 596-597), while two diagnosis reports were signed by a social worker and licensed professional counselor (see R. 493-495, 542-545).

         Plaintiff's FCS records show that Plaintiff reported experiencing visual and auditory hallucinations as early as April 2013. (R. 493). At that time, she reported seeing shadows and people approximately 9-10 times a month for six months, as well as hearing whispers or noise 4-5 times a month for about a year. (Id.). She also reported believing that law enforcement was “against her.” (Id.). In October 2013, she reported hearing noises “like a pipe busted.” (R. 586). In January 2014, she again claimed to have auditory hallucinations. (R. 553). In May 2014, she reported that she “constantly hears noises” and “sometimes hears voices.” (R. 542). She reported that she sees things “no one else does.” (Id.). Lastly, in August 2014, she appears to have denied having any auditory or visual hallucinations. (R. 596).

         The Tenth Circuit has been clear that “an ALJ is required to consider all of the claimant's medically determinable impairments, singly and in combination.” Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006) (finding reversible error where the ALJ failed to consider the claimant's borderline personality disorder). Yet, “[o]nly ‘acceptable medical sources' can provide evidence to establish the existence of a medically determinable impairment, only they can provide medical opinions, and only they can be considered treating sources.” Frantz v. Astrue, 509 F.3d 1299, 1301 (10th Cir. 2007) (internal citations omitted). Under the Social Security regulations, “acceptable medical sources” include licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists. 20 C.F.R. §§ 404.1502(a), 416.902(a).

         Plaintiff cites Salazar v. Barnhard, 468 F.3d 615 (10th Cir. 2006), and Bourgeois v. Colvin, No. 13-CV-503-JED-FHM, to support his argument, but these cases are clearly distinguishable. In Salazar, the claimant had received diagnoses of borderline personality disorder from two acceptable medical sources, yet the ALJ failed to consider the disorder in his disability determination. 468 F.3d at 621-22. Similarly, in Bourgeois, a physician had diagnosed the claimant with borderline personality disorder, and the ALJ failed to consider it. See Doc. 29 in No. 4:13-CV-503-JED-FHM. In this case, no acceptable medical source ever diagnosed Plaintiff with a depressive disorder with psychotic features. The only depression-related diagnosis Plaintiff received from an acceptable medical source is Dr. Heather Kobel's diagnosis of depression, NOS [not otherwise specified]. (R. 532). Thus, the ALJ's determination that depression is one of Ms. Singley's medically determinable impairments ...

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