United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, UNITED STATES DISTRICT JUDGE.
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.
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).
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.).
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).
Standard of Review
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.
Diagnosis from Family & Children's Services
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.
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.
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).
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