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Down v. Berryhill

United States District Court, N.D. Oklahoma

March 20, 2019

MARK A. D., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          FRANK H. MCCARTHY United States Magistrate Judge.

         Plaintiff, MARK A. D., seeks judicial review of a decision of the Commissioner of the Social Security Administration denying Social Security disability benefits.[1] 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).


         Plaintiff was 42 years old on the alleged date of onset of disability and 46 years old on the date of the denial decision. He has an 11th grade education and attended special education classes. His past work experience includes a hog sawer. [R. 30, 126]. Plaintiff claims to have been unable to work since June 10, 2013[2] due to mental issues, uncontrollable bowel movements, asthma, learning disability, paranoid schizophrenia, and chronic bronchitis. [R. 335].

         The ALJ's Decision

         The ALJ determined that Plaintiff has the following severe impairments: congenital bowel disorder status-post surgery, asthma, chronic bronchitis, seizure disorder, kidney function disorder, learning disability, borderline intellectual functioning, paranoid schizophrenia, bipolar disorder, and substance abuse. The ALJ found moderate obesity and Hepatitis C non-severe. [R. 18]. The ALJ determined that Plaintiff has the residual functional capacity to perform light work except he cannot climb ladders, ropes, or scaffolds, be exposed to unprotected heights, open flames, dangerous machinery, or other hazardous conditions. Plaintiff cannot be exposed to elevated levels of gases, fumes, dusts, odors, poor ventilation, or other respiratory irritants, or be exposed to elevated levels of heat (defined as a level in excess of that ordinarily found in office buildings or light manufacturing facilities). Restroom facilities must be readily available with adequate space for the number of employees at the workplace. Due to mental impairments, Plaintiff would be limited to unskilled work consisting of simple and routine tasks with routine supervision that require only that he be able to understand, remember, and carry out simple instructions given orally or by demonstration. Plaintiff can relate to supervisors and coworkers on a superficial work related basis and could adapt to a work situation, but cannot have contact with the general public (defined as interaction with the general public not being part of the job duties, and any contact would in most cases be incidental and superficial). [R. 24]. The ALJ determined that Plaintiff was unable to perform any past relevant work. At step five, the ALJ found that there are a significant number of jobs in the national economy that Plaintiff could perform with these limitations. [R. 31]. 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 properly consider his uncontroverted objective medical evidence. [Dkt. 16, p. 4].


         Plaintiff argues that the ALJ's finding that the record did not support his allegation that he had frequent, uncontrolled bowel movements is in error. Plaintiff contends that the ALJ ignored the verified objective medical evidence from a rectal exam performed on June 2, 2015. [Dkt. 16, p. 5; R. 757-61]. In support of his argument, Plaintiff points to the follow-up examination for cellulitis of his right axilla[3]. Plaintiff was examined by Gabriel Presley, M.D., at St. John Clinic who noted, “Plaintiff would also like a letter regarding his disability. Please see the Letter (sic) note created on this date for more info.” [R. 758]. Dr. Presley further stated:

“This is Gabriel Presley, MD writing a letter for Mr. Mark Down. Mark Down reports to me a (sic) having been born without a rectum. Patient reported to me having a surgery as a baby that utilized part of his GI track as a replacement for his rectum. I did a ‘rectal' exam on the patient and noted that the patient did not have any rectal tone but instead had an opening approximately 1 cm In (sic) diameter with fecal matter around the anus. In my opinion these physical findings were consistent were (sic) Mr. Down's given history.”

[R. 759]. Plaintiff also claims he consistently complained about uncontrollable bowel movements. Plaintiff informed the Department of Corrections he needed to be close to a restroom, [R. 485], advised Family and Children's Services' clinicians that he had difficulty controlling his bowels, [R. 780-81, 831], and informed Good Samaritan Health Services that he could not ...

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