United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Nelson (Plaintiff) brings this action for judicial review of
the Commissioner of Social Security's (Commissioner)
final decision that she was not “disabled” under
the terms of the Social Security Act. See 42 U.S.C.
§§ 405(g), 423(d)(1)(A). United States District
Judge Stephen P. Friot has referred the matter to the
undersigned Magistrate Judge for proceedings consistent with
28 U.S.C. § 636(b)(1)(B), (b)(3) and Fed.R.Civ.P. 72(b).
careful review of the record (AR), the parties' briefs,
and the relevant authority, the undersigned recommends the
entry of judgment affirming the Commissioner's final
decision. See 42 U.S.C. § 405(g).
Social Security Act defines “disability” as the
“inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment that 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). “This twelve-month duration requirement
applies to the claimant's inability to engage in any
substantial gainful activity, and not just his underlying
impairment.” Lax v. Astrue, 489 F.3d 1080,
1084 (10th Cir. 2007) (citing Barnhart v. Walton,
535 U.S. 212, 218-19 (2002)).
Burden of proof.
“bears the burden of establishing a disability”
and of “ma[king] a prima facie showing that [s]he can
no longer engage in [her] prior work activity.”
Turner v. Heckler, 754 F.2d 326, 328 (10th Cir.
1985). If Plaintiff makes that prima facie showing, the
burden of proof then shifts to the Commissioner to show
Plaintiff retains the capacity to perform a different type of
work and that such a specific type of job exists in the
national economy. Id.
Administrative Law Judge (ALJ).
assigned to Plaintiff's case applied the standard
regulatory analysis in order to decide whether Plaintiff was
under a disability for the relevant timeframe. AR 15-24;
see 20 C.F.R. § 404.1520(a)(4); see also
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009)
(describing the five-step process). Specifically, the ALJ
(1) was severely impaired by depression, anxiety, personality
disorder, history of posttraumatic stress disorder,
fibromyalgia, irritable bowel syndrome, hypothyroidism, and
(2) did not have an impairment or combination of impairments
that met or medically equaled the severity of a listed
(3) had the residual functional capacity (RFC) to perform
light work where she would
(a) lift and carry twenty pounds occasionally and ten pounds
(b) sit for six hours and stand and/or walk for six hours for
a total of eight hours in a workday with normal breaks,
(c) occasionally balance, stoop, kneel, crouch, crawl, climb
stairs, and climb ramps,
(d) not climb ladders, ropes, and scaffolds,
(e) not work at unprotected heights, or around dangerous
moving machinery, open flames, and large bodies of water,
(f) not operate a motor vehicle,
(g) learn her work in thirty days or less or by
(h) have no more than occasional interaction with the public,
coworkers, or supervisors;
(4) was unable to perform her past relevant work;
(5) was able to perform jobs existing in the national
economy; and so,
(6) had not been under a disability, as defined in the Social
Security Act, since April 15, 2013, the date she filed her
application for disability insurance benefits.
Social Security Administration's (SSA) Appeals Council
found no reason to review that decision, id. at 1-6,
“making [it] the Commissioner's final decision for
[judicial] review.” Krauser v. Astrue, 638
F.3d 1324, 1327 (10th Cir. 2011).
Judicial review of the Commissioner's final
reviews the Commissioner's final decision to determine
“whether substantial evidence supports the factual
findings and whether the ALJ applied the correct legal
standards.” Allman v. Colvin, 813 F.3d 1326,
1330 (10th Cir. 2016). Substantial evidence is “more
than a scintilla, but less than a preponderance.”
Lax, 489 F.3d at 1084. A decision is not based on
substantial evidence “if it is overwhelmed by other
evidence in the record.” Wall, 561 F.3d at
1052 (internal quotation marks omitted). A court will
“neither reweigh the evidence nor substitute [its]
judgment for that of the agency.” Newbold v.
Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (internal
quotation marks omitted).
a court “must ‘exercise common sense' in
reviewing an ALJ's decision and must not ‘insist on
technical perfection.'” Jones v. Colvin,
514 Fed.Appx. 813, 823 (10th Cir. 2013) (quoting
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166
(2012)). The ALJ's decision must be evaluated
“based solely on the reasons stated in the
decision.” Robinson v. Barnhart, 366 F.3d
1078, 1084 (10th Cir. 2004). A “post hoc rationale is
improper because it usurps the agency's function of
weighing and balancing the evidence in the first
instance.” Carpenter v. Astrue, 537 F.3d 1264,
1267 (10th Cir. 2008).
Issues for judicial review.
through counsel, specifically identifies a single claim of
error in her twenty-six page brief: “Error 1. The
physician errors and RFC.” Doc. 23, at 2, 4 (bolding
omitted and capitalization altered). In responding to
Plaintiff's brief, counsel for the Commissioner noted
that while he “[n]ormally . . . attempts to organize
briefs either by following the order of issues as raised by
Plaintiff, or at least using headings that refer directly to
those used by Plaintiff[, i]n this case, both approaches
proved to be elusive.” Doc. 24, at 5 n.1. The
undersigned agrees with that assessment and, for this report,
simply addresses Plaintiff's claims, assertions,
representations, and questions in the order presented by her