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Johnson v. Berryhill

United States District Court, N.D. Oklahoma

April 11, 2018

RICKY M. JOHNSON, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Deputy Commissioner or Operations, performing the duties and functions not reserved to the Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          FRANK H. McCARTHY UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Ricky M. Johnson, seeks judicial review of a decision of the Commissioner of the Social Security Administration denying disability benefits.[2] In accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before a United States Magistrate Judge.

         Standard of Review

         The role of the court in reviewing the decision of the Commissioner under 42 U.S.C. § 405(g) is limited to a determination of whether the decision is supported by substantial evidence and whether the decision contains a sufficient basis to determine that the Commissioner has applied the correct legal standards. See Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001); Winfrey v. Chater, 92 F.3d 1017 (10th Cir. 1996); Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The court may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Casias v. Secretary of Health & Human Servs., 993 F.2d 799, 800 (10th Cir. 1991). Even if the court would have reached a different conclusion, if supported by substantial evidence, the Commissioner's decision stands. Hamilton v. Secretary of Health & Human Servs., 961 F.2d 1495 (10th Cir. 1992).

         Background

         Plaintiff was 55 years old on the alleged date of onset of disability and 57 on the date of the denial decision. Plaintiff has a high school education and his past work experience includes contractor, homebuilder, newspaper carrier, and oiler. [R. 30, 53]. Plaintiff claims to have become disabled as of January 27, 2014 due to emphysema, chronic obstructive pulmonary disease, bone spurs in knees, weak heart, arthritis, shortness of breath, hypertension, thyroid, sleep apnea, and dead nerves in right knee. [R. 227].

         The ALJ's Decision

         The ALJ found that Plaintiff has severe impairments relating to chronic obstructive pulmonary disease (COPD), hypertension, obesity, and a history of knee pain. [R. 24]. The ALJ found hypothyroidism, sleep apnea, and history of right wrist pain non-severe impairments. [R. 24]. The ALJ determined that Plaintiff has the residual functional capacity to perform less than the full range of medium work. Specifically, Plaintiff can occasionally lift and/or carry 50 pounds, frequently lift and/or carry 25 pounds, stand and/or walk at least 6 hours in an 8-hour workday, and sit at least 6 hours in an 8-hour workday. Plaintiff should avoid concentrated exposure to things such as fumes, odors, dust, and gases. [R. 26]. The ALJ determined that Plaintiff was unable to perform his past relevant work as a contractor, homebuilder, newspaper carrier, and oiler. [R. 30]. Further, based on the testimony of the vocational expert, the ALJ determined that there are a significant number of jobs in the national economy that Plaintiff could perform. [R. 31]. Accordingly, the ALJ found Plaintiff was not disabled. The case was thus decided at step five of the five-step evaluative sequence for determining whether a claimant is disabled. See Williams v. Bowen, 844 F.2d 748, 75052 (10th Cir. 1988) (discussing five steps in detail).

         Plaintiff's Allegations

         Plaintiff asserts that the ALJ: 1) failed to properly consider Plaintiff's obesity; 2) failed to properly consider the treating physician's opinion; 3) failed to properly consider Plaintiff's allegations; and 4) erroneously found that a significant number of jobs exist that the Plaintiff can perform as this finding is not supported by substantial evidence. [Dkt. 18');">18');">18');">18, p. 3].

         Analysis

         Consideration of Obesity

         Plaintiff contends that the RFC does not include the limitations on Plaintiff's ability to stand and walk which the ALJ found resulted from Plaintiff's obesity. Plaintiff bases this contention on the ALJ's finding that Plaintiff's obesity “somewhat reduce[d]” Plaintiff's ability to stand and walk while the RFC included the ability to stand and walk at least 6 hours in an 8 hour workday. Since this is the same number of hours standing and walking as heavy work, Plaintiff argues the reduction to medium work was no reduction at all.

         The court finds that the ALJ clearly considered Plaintiff's obesity and its effect on Plaintiff's ability to stand and walk as the ALJ specifically said that Plaintiff's somewhat reduced ability was accounted for in the RFC. However, the ALJ did not explain exactly how Plaintiff's ability was somewhat reduced. Plaintiff assumes it was a finding that the number of hours Plaintiff could stand and walk was reduced. That is not the only reasonable reading of the ALJ's decision. It could be that Plaintiff's ability to stand and walk was reduced in the sense that he could not stand or walk for 6 hours in an 8 hour workday if he was required to lift and carry the weight required for heavy work, but could do so with the weight required for medium work. The court finds that Plaintiff's assumption that the ALJ's finding that Plaintiff's ability to stand and walk was ...


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