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Hopkins v. Berryhill

United States District Court, N.D. Oklahoma

May 16, 2018

JERRY HOPKINS, Plaintiff,
v.
NANCY A. BERRYHILL,[1] Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security,

          OPINION AND ORDER

          FRANK H. McCARTHY UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, JERRY HOPKINS, seeks judicial review of a decision of the Commissioner of the Social Security Administration denying Social Security 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, 14');">14');">14');">1420');">91 S.Ct. 14');">14');">14');">1420, 14');">14');">14');">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., 14');">14');">14');">1495');">961 F.2d 14');">14');">14');">1495 (10th Cir. 1992).

         Background

         Plaintiff was 41 years old on the alleged date of onset of disability and 44 years old on the date of the denial decision. He has a tenth grade education and past work experience includes a welder, oil field pumper, and maintenance repairer. [R. 23, 194]. Plaintiff claims to have been unable to work since October 7, 2013[3] due to ankylosing spondylitis, pain in lower back, and pain in both hips. [R. 193].

         The ALJ's Decision

         The ALJ determined that Plaintiff has the following severe impairments: osteoarthritis, obesity, and fibromyalgia. [R. 16]. The ALJ determined that the Plaintiff has the residual functional capacity to perform light work except he can specifically lift/carry up to 20 pounds occasionally and 10 pounds frequently. Plaintiff can sit/stand and/or walk 6 hours in an 8 hour day. Plaintiff cannot climb ladders, ropes, or scaffolding, but can occasionally climb stairs and ramps. He is limited to occasional stooping, crouching, and crawling. Plaintiff is limited to frequently grasping, handling, and fine motor manipulation. [R. 17]. The ALJ determined that although Plaintiff cannot return to his past relevant work, based on the testimony of the vocational expert, there are a significant number of jobs in the national economy that Plaintiff could perform. [R. 23-24]. 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, 750-52 (10th Cir. 1988) (discussing five steps in detail).

         Plaintiff's Allegations

         Plaintiff asserts the ALJ failed to: 1) consider ankylosing spondylitis as a medically determinable impairment; 2) properly consider the treating physician's opinion; and 3) properly consider Plaintiff's statements. [Dkt. 14');">14');">14');">14, p. 4].

         Analysis

         Ankylosing Spondylitis A recurring claim in Plaintiff's arguments before the court is that the ALJ did not consider Plaintiff's ankylosing spondylitis in reaching the decision that Plaintiff is not disabled. Plaintiff's argument is not supported by the record. Plaintiff's ankylosing spondylitis is noted numerous times in the ALJ's Decision and a fair reading of the Decision shows that the ALJ did, in fact, consider Plaintiff's ankylosing spondylitis.

         Plaintiff argues that the ALJ erred at step two by failing to consider Plaintiff's ankylosing spondylitis as a medically determinable impairment. [Dkt. 14');">14');">14');">14, p. 5]. At step two of the evaluative sequence, the ALJ must determine whether Plaintiff suffers from severe impairments. That is all that is required of the ALJ at step two. Oldham v. Astrue, 509 F.3d 1254, 1256 (10th Cir. 2007). Once an ALJ finds that a claimant has at least one severe impairment, a failure to designate others as “severe” at step two does not constitute reversible error because, under the regulations, the agency at later steps “consider[s] the combined effect of all of [the claimant's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity.” 20 C.F.R. §§ 404.1521, 416.921; see also 20 C.F.R. §§ 404.1525(e), 416.945(e); Mariaz v. Sec'y of Health & Human Servs., 857 F.2d 240, 244 (6th Cir. 1987), Brescia v. Astrue, 287 Fed.Appx. 616, 629 (10th Cir. 2008). The ALJ's decision demonstrates he considered all of Plaintiff's alleged impairments. Thus, the court finds no error in the ALJ's findings at step two.

         Plaintiff also argues that ankylosing spondylitis was not considered at step three. The Listings of Impairments (Listings) describe, for each of the major body systems, impairments which are considered severe enough to prevent a person from performing any gainful activity. 20 C.F.R. Pt. 404, Subpt. P, App.1. At step three of the sequential analysis, the ALJ is required to discuss the evidence in the context of the relevant listing and the reasons for determining that Plaintiff does not meet a listing. Clifton v. Chater,79 F.3d 1007, 1009 (10th Cir. 1996). It is well established that it is Plaintiff's burden to show that his impairment is equivalent to a listing. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). It is also well established that all of the specified medical criteria must ...


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