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Jennings v. Berryhill

United States District Court, W.D. Oklahoma

May 8, 2018

JIMMIE JENNINGS, Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner for Operations of the Social Security Administration, performing the duties and functions not reserved to the Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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.[1] For the reasons set forth below, it is recommended that the Commissioner's decision be affirmed.

         I. Procedural Background

         On 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.

         II. The ALJ's Decision

         The ALJ 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.

         At step 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.

         At step 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.

         III. Claims Presented for Judicial Review

         Plaintiff 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.

         IV. Standard of Review

         Judicial 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).

         V. Analysis

         A. Medical Evidence

         1.CT Scan Results and Listing 1.04

         Plaintiff 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 alteration omitted))).

         Plaintiff 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 ...


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