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Dennington v. Berryhill

United States District Court, W.D. Oklahoma

May 23, 2019

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



         Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration denying Plaintiff's application for benefits under the Social Security Act. The Commissioner has answered and filed a transcript of the administrative record (hereinafter TR.). The parties have consented to jurisdiction over this matter by a United States magistrate judge pursuant to 28 U.S.C. § 636(c).

         The parties have briefed their positions, and the matter is now at issue. Based on the Court's review of the record and the issues presented, the Court AFFIRMS the Commissioner's decision.


         Initially and on reconsideration, the Social Security Administration (SSA) denied Plaintiff's application for benefits. Following an administrative hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 23-32). The Appeals Council denied Plaintiff's request for review. (TR. 1-3). Thus, the decision of the ALJ became the final decision of the Commissioner.


         The ALJ followed the five-step sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. § 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since July 23, 2015, her application date. (TR. 25). At step two, the ALJ determined that Ms. Dennington had the following severe impairments: “major depressive disorder, generalized anxiety disorder, rule out panic disorder, and degenerative disc disease, hip disorder.” (TR. 25). At step three, the ALJ found that Plaintiff's impairments did not meet or medically equal any of the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1 (TR. 28).

         At step four, the ALJ concluded that Ms. Dennington retained the residual functional capacity (RFC) to:

[L]ift and carry 20 pounds occasionally and 10 pounds frequently. The claimant sit for about six hours during an eight-hour workday and can stand and walk for about six hours during an eight-hour workday. The claimant can frequently climb, balance, stoop, kneel, crouch, and crawl. The claimant can perform simple and some complex tasks. The claimant can relate to supervisors and co-workers on a superficial work basis. The claimant can adapt to work situations. The claimant can have frequent contact with the general public (semi-skilled). 20 CFR 416.967(b).

(TR. 29). At the administrative hearing, the ALJ questioned Ms. Dennington and a vocational expert (VE) to assess Plaintiff's past relevant work. (TR. 45-49, 58-69). In doing so, the VE testified that an individual with Ms. Dennington's RFC was capable of performing her past work as a personal caregiver, and a motel cleaner, as she had performed those jobs. (TR. 63). Thus, at step four, the ALJ concluded that Ms. Dennington was not disabled based on her ability to perform these past jobs, as she had actually performed them. (TR. 31-32).[1]


         This Court reviews the Commissioner's final “decision to determin[e] whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). Under the “substantial evidence” standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). “Substantial evidence … is more than a mere scintilla … and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. at 1154 (internal citations and quotation marks omitted).

         While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).


         On appeal, Ms. Dennington alleges multiple errors at step four.

         V. STEP FOUR

         Ms. Dennington alleges that the ALJ erred at phases one and two of step four, which resulted in a lack of substantial evidence to support his ultimate finding at step four. The Court disagrees.

         A. The ALJ's Duties at Step Four/Plaintiff's Arguments

         At step four, the Tenth Circuit has mandated that the ALJ perform a specific three-phase analysis:

In the first phase, the ALJ must evaluate a claimant's physical and mental residual functional capacity (RFC), … and in the second phase, he must determine the physical and mental demands of the claimant's past relevant work. In the final phase, the ALJ determines whether the claimant has the ability to meet the job demands found in phase two despite the mental and/or physical limitations found in phase one[.] At each of these phases, the ALJ must make specific findings.

Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (internal citations omitted).

         In assessing the RFC, the ALJ must consider the limitations and restrictions imposed by a claimant's impairments, as set forth in the objective record and as alleged by the claimant, and express any limitations in terms of specific, work-related mental activities he or she is able to perform. See Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8p, 1996 WL 374184, at *5-7 (July 2, 1996).

         Ms. Dennington has argued that the ALJ erred at phase one by: (1) engaging in impermissible selective review of two State Agency psychologists' opinions and (2) failing to credit certain testimony at the hearing. (ECF No. 16:10-12). Plaintiff argues that the ALJ erred at phase two by: (1) ignoring Plaintiff's testimony regarding the exertional level at which she performed her past job as a personal caregiver and (2) concluding that she had performed her past job of motel cleaner at a level which qualified as “substantial gainful activity.” (ECF No. 16:12-13). Because of the errors at phases one and two, Ms. Dennington contends that substantial evidence does not exist to support the phase three findings that Plaintiff could return to her past relevant work.

         B. ...

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