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Chacko v. Berryhill

United States District Court, W.D. Oklahoma

June 3, 2019

JUSTIN CHACKO, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          ORDER

          PATRICK R. WYRICK, UNITED STATES DISTRICT JUDGE

         On December 18, 2018, United States Magistrate Judge Gary M. Purcell issued a Report and Recommendation (Dkt. 21) in this action in which the Plaintiff seeks judicial review of the Defendant's final decision denying his application for disability insurance and supplemental security income benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. The Magistrate Judge recommended the Commissioner's decision in this matter be affirmed. The parties were advised of their right to object to the Report and Recommendation by January 7, 2019. The Plaintiff has timely filed his objections.

         The Plaintiff first objects to the Report and Recommendation by contending that the Magistrate Judge engaged in improper post-hoc rationalization of the ALJ's assessment of his residual functional capacity (RFC), particularly insofar as it recommended avoidance of exposure to vibrations. In particular, the Plaintiff takes issue with the Magistrate Judge's statement that, “in light of [Dr. Lorber's] testimony in which he refused to provide an opinion related to Plaintiff's migraines, it stands to reason this recommended limitation was, as Plaintiff contends, related to a different impairment.”[1] Having carefully reviewed this matter de novo, the Court finds that the Magistrate Judge did not engage in any improper post-hoc reasoning in making his findings in the Report and Recommendation. Looking at the administrative record, it is readily apparent the ALJ imposed a vibration restriction because of tremors that the consultative examiner, Dr. Lawton, observed at a post-hearing appointment and attributed to rebound headaches caused by medications.[2] The Magistrate Judge's statement is not a rationalization; it is a statement of fact that the restriction was imposed because of tremors that in turn are related to medications the Plaintiff was taking for either one of his impairments.

         The Plaintiff's second objection is related to the Magistrate Judge's allegedly “significant error” in rejecting the Plaintiff's complaints of photophobia, phonophobia, and nausea for lack of objective medical evidence. In his briefs, the Plaintiff pointed out nine medical records that he contends “consistently” demonstrate limitations related to light, sound, nausea, and vomiting.[3] Of those nine records, three are duplicates.[4] Of the six records that are not duplicates, five contain an identical History of Present Illness, or “HPI, ” stating that Plaintiff is an “A[dult ]M[ale] with h[istory] of migraine who presents for evaluation. P[atien]t states onset of headache was 1997 after M[otor ]V[ehicle ]A[ccident;] p[atien]t was struck by a large truck at the time. P[atien]t states pain is bilateral temp[oral] head region, throbbing, photophobia, phonophobia, nausea, vomiting. 2-4/week, will last 12-24 hours.”[5] Besides the fact that these statements are self-reported and are not supported by objective medical evidence, which the Magistrate Judge found noteworthy, [6]the Court does not believe that a repetitive, boiler-plate recitation of the present illness's history demonstrates consistent, long-lasting problems that merit additional limitations for Plaintiff's RFC. Moreover, the Plaintiff does not cite one case or regulation in support of the Magistrate Judge's alleged error in affirming the ALJ's rejection of limitations related to light, sound, or ability to attend work.

         The relevant authorities concerning how much weight to give Plaintiff's statements about symptoms like photophobia, phonophobia, nausea, and vomiting are 20 C.F.R. § 1529(a)[7] and Social Security Ruling 16-3P.[8] Having carefully reviewed this matter de novo, the Court finds that the Magistrate Judge did not err in affirming the Acting Commissioner's decision and that the Acting Commissioner's decision properly considered all relevant evidence. All that is required to affirm the Acting Commissioner's decision is substantial evidence in the record, [9] which is “more than a scintilla, but less than a preponderance.”[10] The record contains substantial evidence supporting the Acting Commissioner's decision.[11] To the extent the Plaintiff wants this Court to give his statements more weight than the other evidence in the record, he is asking this Court to reweigh the evidence and substitute its judgment for that of the Acting Commissioner. Such reweighing is not permissible.[12]

         Accordingly, the Court:

(1) ADOPTS the thorough and well-reasoned Report and Recommendation (Dkt. 21) issued by the Magistrate Judge on December 18, 2018, and
(2) AFFIRMS the decision of the Acting Commissioner.

         IT IS ORDERED.

---------

Notes:

[1] See Pl.'s Obj. to Mag.'s R. & R. (Dkt. 25) at 2-3 (quoting R. & R. (Dkt. 21) at 8-9).

[2] Admin. R. at 102 (where the ALJ says: “However, considering his tremor during the consultative examination, identified as related to rebound headaches (Ex. 22F/2); the claimant must avoid exposure to vibrations.”); see also Id. at 948-49 (part of the referenced Exhibit No. 22F, where Dr. Lawton states in his note from the December 20, 2016 appointment: “His medications consist of Topamax, Fioricet, Cymbalta, Baclofen, Lyrica, Percocet, Zofran and a variety of supplements and vitamins. . . . There is a very fine tremor of the outstretched hands that I would attribute to the polypharmacy. . . . I am greatly inclined to think the patient's headaches are rebound in type given the polypharmacy as described above.”)

[3] See Pl.'s Br. (Dkt. 14) at 8 (citing Admin. R. at 447, 449, 455, 509, 533, 693, 745, 921, 924); see also R. & R. (Dkt. 21) at 5-6 (referencing ...


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