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Calvert v. Berryhill

United States District Court, N.D. Oklahoma

March 26, 2018

KENNETH CALVERT, Plaintiff,
v.
NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER TO DENY PLAINTIFF'S APPEAL

          Gerald B. Cohn United States Magistrate Judge.

         This 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 this case.

         I. STANDARD OF REVIEW

         To 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).

         The Act 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. §§ 423(d)(3), 1382c(a)(3)(D).

         Social 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.

         In 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).

         II. BACKGROUND

         A. Procedural History

         In 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).

         III. ISSUES AND ANALYSIS

         On 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).

         A. Step Five and VE Testimony

         1. Performance of Other Work

         Plaintiff 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. ...

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