United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE
Jimmie Jennings, seeks judicial review of the Social Security
Administration's denial of his application for
supplemental security income (SSI). United States District
Judge Scott L. Palk has referred the matter for proposed
findings and recommendations. See 28 U.S.C.
§§ 636(b)(1)(B), 636(B)(3); Fed.R.Civ.P. 72(b). The
Commissioner has filed the Administrative Record (AR) [Doc.
No. 15], and both parties have briefed their
positions. For the reasons set forth below, it is
recommended that the Commissioner's decision be affirmed.
September 19, 2016, an Administrative Law Judge (ALJ) issued
an unfavorable decision finding Plaintiff was not disabled
and, therefore, not entitled to SSI. AR 10-20. The Appeals
Council denied Plaintiff's request for review.
Id. at 1-6. Accordingly, the ALJ's decision
constitutes the Commissioner's final decision. See
Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
Plaintiff timely commenced this action for judicial review.
The ALJ's Decision
followed the five-step sequential evaluation process required
by agency regulations. See Wall v. Astrue, 561 F.3d
1048, 1051 (10th Cir. 2009) (explaining process); see
also 20 C.F.R. § 416.920. Following this process,
the ALJ first determined that Plaintiff had not engaged in
substantial gainful activity since November 24, 2014, his
alleged onset date. AR 12.
two, the ALJ determined Plaintiff suffers from the following
severe impairments: major depressive disorder, status post
cocaine and drug use, disc herniation at ¶ 4-5, and
obesity. Id. at 12-13. At step three, the ALJ found
that Plaintiff's impairments do not meet or medically
equal any of the impairments listed at 20 C.F.R. Part 404,
Subpart P, App. 1. Id. at 13-14.
The ALJ next determined Plaintiff's residual functional
capacity (RFC), concluding that:
[Plaintiff can] perform light work as defined in 20 CFR
416.967(b) except occasional stooping, crouching, and
kneeling; work is limited to simple, routine, and repetitive
tasks; able to understand, remember and carry out simple
instructions, but not detailed instructions; no interaction
with the general public; only occasional interaction with
co-workers; and only occasional interaction with supervisors.
Id. at 14-19.
four, relying on a vocational expert's (VE) testimony,
the ALJ determined Plaintiff is unable to perform his past
relevant work and that transferability of job skills is not a
material issue. Id. at 19. The ALJ then proceeded to
step five and, again relying on the VE's testimony, found
Plaintiff can perform work existing in significant numbers in
the national economy. Id. at 19-20. Specifically,
the ALJ found Plaintiff can perform the requirements of
representative jobs such as small products assembler,
bottling line attendant, and production welder. Id.
at 20. Therefore, the ALJ concluded that Plaintiff is not
disabled for purposes of the Social Security Act.
Id. at 20.
Claims Presented for Judicial Review
alleges the ALJ erred in failing to: (1) properly consider
various medical evidence; (2) include in the RFC limitations
for Plaintiffs cognitive impairments; (3) properly assess
Plaintiffs RFC; and (4) “Properly Review the Opinion
Evidence with RFC.” Pl.'s Br. [Doc. No. 17] at
6-20. For the reasons set forth below, the undersigned finds
no grounds for reversal.
Standard of Review
review of the Commissioner's final decision is limited to
determining whether the factual findings are supported by
substantial evidence in the record as a whole and whether the
correct legal standards were applied. See Poppa v.
Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009); see
also Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir.
2008) (holding that the court only reviews an ALJ's
decision “to determine whether the factual findings are
supported by substantial evidence in the record and whether
the correct legal standards were applied” and in that
review, “we neither reweigh the evidence nor substitute
our judgment for that of the agency” (citations and
internal quotation marks omitted)). Under such review,
“common sense, not technical perfection, is [the
Court's] guide.” Keyes-Zachary v. Astrue,
695 F.3d 1156, 1167 (10th Cir. 2012).
Scan Results and Listing 1.04
first argues that the ALJ erred in his step-three
consideration of Plaintiff s back pain. On March 18, 2016,
Plaintiff had a CT scan done of his lumbar spine that showed
a “[l]eft paracentral disc extrusion (herniation) . . .
at ¶ 4-L5 causing effacement of the thecal sac and left
nerve root.” AR 386-87. Plaintiff argues that the ALJ
mistakenly described Plaintiffs CT scan as indicating a
“left paracentral disc protrusion, ” rather than
a disc “extrusion” or “herniation.”
Pl.'s Br. at 6 (citing AR 16). Though Plaintiff is
correct that the ALJ was mistaken in his description of the
CT results in one reference in his decision, the ALJ
correctly referenced the results in other portions of the
decision. See AR 12 (referencing Plaintiffs
“disc herniation”), 17 (referencing Plaintiffs
“disc extrusion”). Further, Plaintiff has not
shown that the ALJ's misstatement resulted in any error.
See Pl.'s Br. at 6-8; Paulek v. Colvin,
662 Fed.Appx. 588, 593 (10th Cir. 2016) (“[Plaintiff]
fails to ‘identify how the ALJ's characterization
affected his RFC determination or his ultimate conclusion of
nondisability.'” (quoting Howard v.
Barnhart, 379 F.3d 945, 947 (10th Cir. 2004) (internal
next argues that the ALJ erred in his consideration of
Listing 1.04. Pl.'s Br. at 6-8. Plaintiff takes issue
with the ALJ's statement that Plaintiff “does not
have consistent evidence of . . . positive straight leg
raising.” Pl.'s Br. at 6-7 (citing AR 13). Pointing
to one straight leg raising test with a result of
“25-50 degrees, ” Plaintiff argues ...