United States District Court, N.D. Oklahoma
OPINION AND ORDER TO DENY PLAINTIFF'S
B. Cohn United States Magistrate Judge.
matter is before the undersigned United States Magistrate
Judge for decision. Kenneth Calvert (“Plaintiff”)
seeks judicial review of the Commissioner of the Social
Security Administration's decision finding of not
disabled. As set forth below, the Court
DENIES Plaintiff's appeal and
AFFIRMS the Commissioner's decision in
STANDARD OF REVIEW
receive di sability or supplemental security benefits under
the Social Security Act (“Act”), a claimant bears
the burden to demonstrate an “inability to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A); accord
42 U.S.C. § 1382c(a)(3)(A).
further provides that an individual:
shall be determined to be under a disability only if his
physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work
but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy, regardless of
whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
Plaintiff must demonstrate the physical or mental impairment
“by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. §§
Security regulations implement a five-step sequential process
to evaluate a disability claim. 20 C.F.R. §§
404.1520, 416.920; Williams v. Bowen, 844 F.2d 748,
750 (10th Cir. 1988) (setting forth the five steps in
detail). “If a determination can be made at any of the
steps that a plaintiff is or is not disabled, evaluation
under a subsequent step is not necessary.”
Williams, 844 F.2d at 750. The claimant bears the
burden of proof at steps one through four. See Wells v.
Colvin, 727 F.3d 1061, 1064 at n.1. (10th Cir. 2013). If
the claimant satisfies this burden, then the Commissioner
must show at step five that jobs exist in the national
economy that a person with the claimant's abilities, age,
education, and work experience can perform. Id.
reviewing a decision of the Commissioner, the Court is
limited to determining whether the Commissioner has applied
the correct legal standards and whether the decision is
supported by substantial evidence. See e.g., 42
U.S.C. § 405(g) (“court shall review only the
question of conformity with such regulations and the validity
of such regulations”); Grogan v. Barnhart, 399
F.3d 1257, 1261 (10th Cir. 2005). Substantial evidence is
more than a scintilla but less than a preponderance and is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. See id.
Substantial evidence “does not mean a large or
considerable amount of evidence, but rather ‘such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'” Pierce v.
Underwood, 487 U.S. 552, 565 (1988) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). The Court's review is based on the
record, and the Court will “meticulously examine the
record as a whole, including anything that may undercut or
detract from the [Administrative Law Judge's
(“ALJ's”)] findings in order to determine if
the substantiality test has been met.” Id. The
Court may neither reweigh the evidence nor substitute its
judgment for that of the Commissioner. See Hackett v.
Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Even if
the Court might have reached a different conclusion, if
supported by substantial evidence, the Commissioner's
decision stands. See White v. Barnhart, 287 F.3d
903, 908 (10th Cir. 2002).
September 2013, Plaintiff protectively applied for Disability
Insurance Benefits (“DIB”) under Title II of the
Act, 42 U.S.C. §§ 416(i) and 423, and Supplemental
Security Income (“SSI”) payments under Title XVI
of the Act. (Tr. 184-94). Plaintiff alleged disability since
August 19, 2011 (Tr. 184), due to depression and injuries to
his neck, shoulders, back, and hip. (Tr. 213, 260). At the
administrative hearing, Plaintiff appeared and testified with
the assistance of a non-attorney representative (his primary
representative was an attorney), and a vocational expert also
testified. (Tr. 11, 29-50). On March 27, 2015, the ALJ issued
a decision finding Plaintiff not disabled. (Tr. 8-28).
Plaintiff requested review of the ALJ's decision by the
agency's Appeals Council. (Tr. 7, 284-85). The Appeals
Council denied Plaintiff's request (Tr. 1-5), making the
ALJ's decision the Commissioner's final decision for
purposes of judicial review. See 20 C.F.R. §
422.210(a).2. Plaintiff was 47 years old on the date of the
Commissioner's final decision. (Tr. 184, 188).
ISSUES AND ANALYSIS
appeal, Plaintiff alleges three errors: (1) failing to
investigate and elicit from the vocational expert
(“VE”) an explanation as to the conflict between
the VE's testimony and the Dictionary of Occupational
Titles (“DOT”); (2) failing to properly analyze
whether Plaintiff meets Listing 12.05 of the Listings of
Impairment found in 20 CFR Part 404, Subpart P, Appendix 1;
and (3) failing to properly determine Plaintiff's
Residual Functional Capacity (“RFC”). (Pl. Br. at
10, Doc. 28).
Step Five and VE Testimony
Performance of Other Work
contends the ALJ erred at Step Five of the sequential
evaluation process by finding Plaintiff could perform the
jobs identified by the VE because they require some level of
reading and language development. (Pl. Br. at 11, 13-14). In
the decision, the ALJ reviewed the record and Plaintiff's
testimony prior to evaluating his RFC:
The claimant has the following severe impairments: borderline
intellectual functioning, depression, rotator cuff repair of
both shoulders, degenerative joint disease of the AC joint,
and mild degenerative disc disease of the lumbar spine
At the hearing, the claimant testified as follows:
He had worked as a welder and had been a big drill machinist.
He also had some self-employment earnings. He had surgery on
his shoulders and they hurt. He had not worked since then. He
cannot work because of his shoulders, hips and sleep apnea.
He has had surgery on both shoulders which did not work. He
had three discs in his back that were messed up and
decompression was supposed to help. It was not surgery; they
stretched him in the doctor's office. His pain is located
in both shoulders, his back and his hips. It is an aching,
burning pain that is always there. Movement makes it worse.
He does not lift things. He might help his wife carry in a
carton of eggs or a gallon of milk but he does not lift a bag
of potatoes. If he bends over it is hard [for] him to
straighten back up. Pain is there all the time but it is
worse if he bends over. It is sharp pain. When he bends over
to tie his shoes it shoots down his right leg. His right hip
is worse than his left hip. Stooping and bending make it
worse. He takes pain medications of Tramadol and Cymbalta and
three more medications that he does not remember … He
also takes over the counter pain pills. Dr. Anthony
prescribed the pain medications. Cymbalta makes him sleepy so
he takes it at night. He did physical therapy after the
surgery. It helped some but he still hurt.
During the day he goes out to look at his children's
small dogs. His wife does not work. His income is from the
multiple injury fund from the state of Oklahoma. He gets food
stamps. His children are 8 and 15 years of age. His wife and
daughter do the housework. ...