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Fugate v. Berryhill

United States District Court, N.D. Oklahoma

March 30, 2018

GREGORY LEE FUGATE, 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. Gregory Lee Fugate (“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

         Plaintiff worked as a firefighter for twenty-three (23) years and seeks Medicare hospital benefits as a Medicare Qualified Government Employee (MQGE)[2] due to back pain, neuropathy, headaches, depression, anxiety, irritability, anger issues, sleeping disorder, poor concentration, poor memory, and hearing loss. (Tr. 6, 191). Plaintiff filed an application in December 2012, alleging an onset date of May 10, 2010. (Tr. 171). Following an administrative hearing, the ALJ issued a decision dated October 14, 2014, finding Plaintiff not entitled to benefits. (Tr. 19-31). Plaintiff was born in 1965; he was forty-four (44) years old on the date of alleged onset and forty-eight (48) years old at the time of the ALJ's decision. (Tr. 43). The appeals counsel denied Plaintiff's request for review on May 31, 2016. (Tr. 1-4). Therefore, the decision of the ALJ became the final decision of the Commissioner of Social Security Administration. Plaintiff timely filed this action.

         III. ISSUES AND ANALYSIS

         On appeal, Plaintiff al leges four errors: (1) the ALJ should have found Plaint i ff was disabled at Step Two (listed impairment); (2) the ALJ made an improper credibility assessment; (3) the ALJ did not give proper weight to the restrictions given Plaintiff by his treating physician; and (4) the ALJ erred in formulating the Residual Functional Capacity (“RFC”) assessment by failing to include all of Plaintiff's limitations. (Pl. Br. at 1-2, Doc. 10).

         A. Listed Impairment

         1. 1.04(A) Disorders of the spine

         Plaintiff contends the ALJ erred by finding Plaintiff did not meet the requirements of Listing 1.04(A) Disorders of the spine. (Pl. Br. at 2). Listing § 1.04(A) Disorders of the spine provides a claimant is disabled per se as follows:

1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine) ...

20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04(A).[3] In the decision, the ALJ reviewed the record and Plaintiff's testimony prior to evaluating his RFC:

The claimant is insured for Medicare Benefits only. He does not have insured status for title II monthly benefits …
The claimant has the following severe impairments: degenerative disc disease of the spine status post remote history of hardware placement (April 2003) and hardware removal (November 2004) with peripheral neuralgia, right ankle impairment, bilateral hearing loss, depressive disorder, PTSD, and alcoholism in reported remission …
The claimant's testimony is summarized as follows:
He lives in Collinsville in a house with his daughter and his girlfriend. His son is 17 years old and also lives in the house. He has five acres of his father's land and they have about 40 cows on the property. He does not work with the cattle because his father has someone hired for that purpose. He does haul the cattle in a big stock trailer and he uses a red heeler dog to round up the cattle. He occasionally drives his dad's dump trunk and hauls dirt and gravel. They live in the house free as payment for helping his dad. He drives the truck once or twice a week for a few hours. Before his back got bad, he was driving more often. He was a firefighter in Broken Arrow but left due to back injuries. He has filed two workers' compensation cases that he knows of. He is also deaf in the right ear. He fell out of the tub about two months ago, and about a month ago he had a bursa sac on his right knee that burst and he went to the emergency department.
He can lift about 50 pounds but he pays for it later because his back hurts extremely badly and the pain makes him hateful. He has been told that he is depressed but quit taking his medication for depression a few months ago. The medications made his depression worse and he does not like to feel drugged up. He would lock himself in a room about three times a week and would just lie down from the pain. He can walk about 100 yards but has pain in his back that goes down both legs to his feet for most of the day. He can stand about 30 minutes and sit for about an hour. He sits in a recliner with his feet propped up and he does the Jacuzzi baths. He sits in his recliner about four hours a day and watches television in the evenings. He just hangs out around the house during the day. His girlfriend does the grocery shopping and all the chores. He drives the dump truck around Tulsa, which is about 75 miles radius. He last drank alcohol about three weeks before the hearing, and last drank a lot of alcohol about three years ago. He was a firefighter for 23 years. He drops a lot of things and has problems with peripheral neuropathy. He has extreme pain with only [light] touch to his feet. He once lifted a tractor tire that weighed about 100 pounds and it put him into the emergency department. He does not take pain medication every day. He has a diagnosis of PTSD from dealing with multiple calls that involve children and babies especially …
The claimant alleges he is disabled and unable to work due to back pain, neuropathy, headaches, depression, anxiety and PTSD. He has undergone an L5-S1 fusion with orthopedic instrumentation in 2001 and hardware removal in 2005. He has worked as a firefighter for 23 years but had to retire due to his health problems. The ...

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