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Lisoyo v. Berryhill

United States District Court, W.D. Oklahoma

February 5, 2019

CECILIA LISOYO, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Cecilia Lisoyo, seeks judicial review of the Social Security Administration's denial of her application for disability insurance benefits. 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) and (C). The Commissioner has filed the Administrative Record (AR) [Doc. No. 13], 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 April 4, 2017, an Administrative Law Judge (ALJ) issued an unfavorable decision finding Plaintiff was not disabled and, therefore, not entitled to DIB. AR 12-23. The Appeals Council denied Plaintiff's request for review. Id. at 1-3. 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. § 404.1520. The ALJ first determined Plaintiff has not engaged in substantial gainful activity since May 27, 2015, her application date. AR 14.

         At step two, the ALJ determined Plaintiff suffers from the following severe impairments: “disorders of gastrointestinal system; post portal vein thrombosis; and intestinal blood clot.” Id. Then, at step three, the ALJ found 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 15-16.

         The ALJ next determined Plaintiff's residual functional capacity (RFC), concluding that she:

[can] perform less than a full range of sedentary work . . . [and can] [n]ever climb ladders, ropes, or scaffolds. [She can] [f]requently climb ramps and stairs; [o]ccasionally stoop, kneel, crouch, or crawl; [and is] [l]imited to jobs which can be performed while using a hand-held assistive device such as a walker for ambulation.

Id. at 16.

         At step four, the ALJ determined Plaintiff has no past relevant work, id. at 22, and at step five, found Plaintiff can perform unskilled work as document preparer, production worker, and/or food and beverage order clerk, work existing in significant numbers in the national economy. Id. at 22-23. Therefore, the ALJ concluded that Plaintiff is not disabled for purposes of the Social Security Act. Id. at 23.

         III. Claims Presented for Judicial Review

         When the ALJ presented the vocational expert (VE) with a hypothetical question describing a claimant with Plaintiff's RFC, she included a limitation of “able to read or recognize only simple language.” Id. at 16. The ALJ did not include that limitation in her final RFC finding, see supra at 2, and Plaintiff first alleges reversible error because the RFC and hypothetical question to the VE did not match “with precision.” Pl.'s Br. at 3-5 (emphasis omitted). Plaintiff next argues that assuming the ALJ intended to include the reading limitation in the RFC finding, the VE's testimony that such a claimant could perform unskilled work as document preparer, production worker, and/or food and beverage order clerk conflicted with the Dictionary of Occupational Titles and the ALJ did not ask the VE to explain the conflict. Id. at 3-6.

         IV. Stand ...


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