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Avery v. Saul

United States District Court, W.D. Oklahoma

July 23, 2019

ROBERT L. AVERY, Plaintiff,



         Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of Defendant Commissioner's decision denying his application for disability insurance benefits (DIB). Defendant has answered the Complaint and filed the administrative record (hereinafter AR__). The parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended that the Commissioner's decision be reversed and remanded for further proceedings consistent with this Report and Recommendation.

         I. Administrative History and Final Agency Decision

         Plaintiff filed his application for DIB on December 16, 2015, alleging disability beginning December 11, 2015. AR 36. The Social Security Administration denied his application initially and on reconsideration.

         Plaintiff appeared with his representative and testified at a video administrative hearing on August 8, 2017, before an Administrative Law Judge (“ALJ”). Id. at 50-72. A vocational expert (“VE”) also testified at the hearing. Id. at 67-71. The ALJ issued a decision in which he found Plaintiff was not disabled within the meaning of the Social Security Act. Id. at 34-45.

         Following the agency's well-established sequential evaluation procedure, the ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since his alleged onset date. Id. at 38. At the second step, the ALJ found Plaintiff had one severe impairment: degenerative disc disease of the back, post-surgery. Id.

         At the third step, the ALJ determined Plaintiff's spinal impairment did not meet or equal one of the presumptively disabling impairments listed at 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ considered the Listing at 1.04, Disorders of the Spine, and stated Plaintiff's spinal impairment did not meet or medically equal that Listing. Id. at 39.

         At step four, the ALJ determined Plaintiff had the following residual functional capacity (“RFC”):

[T]he claimant has the residual functional capacity to perform light work . . . except he is limited to occasional climbing, balancing, and stooping. He must avoid walking on uneven surfaces. He must be allowed to alternate between sitting and standing every 20-30 minutes throughout the workday for the purpose of changing positions, but without leaving the workstation.


         Relying on the VE's testimony, the ALJ found Plaintiff could not perform his past relevant work as concrete truck driver or dump truck driver, jobs that require the ability to work at the medium exertional level. Id. at 43.

         At step five, the ALJ again relied on the VE's testimony and concluded Plaintiff's RFC would allow him to perform jobs existing in significant numbers in the national economy including small products assembler and inspector/packer. Id. at 44. The VE testified that the numbers of both jobs would be reduced by 50% based on the required sit/stand option. Nevertheless, the ALJ determined these jobs represented a “significant number” of jobs available in the national economy. Based on this finding, the ALJ concluded Plaintiff had not been under a disability, as defined by the Social Security Act, since December 11, 2015, through the date of the decision. Id. at 44.

         Plaintiff presented additional evidence to the Appeals Council, but the Appeals Council denied Plaintiff's request for review. AR 1-6. Therefore, the ALJ's decision is the final decision of the Commissioner. See 20 C.F.R. § 404.981; Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009).

         II. Issues Raised

         Plaintiff raises four issues.: (1) the Appeals Council erred by declining to review the evidence submitted after the ALJ's decision; (2) the ALJ erred in failing to find Plaintiff's mental impairments to be medically determinable; (3) the ALJ erred in failing to reconcile the internal inconsistencies in the State Agency physicians' reports; and (4) the ALJ erred, as a matter of law, in failing to discuss uncontroverted, significantly probative evidence that conflicted with his findings and tainted the evaluation of symptoms and the resulting RFC. Plaintiff's Opening Brief, (Doc. No. 20).

         III. General Legal Standards Guiding Judicial Review

         The Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and whether the Commissioner applied the correct legal standards. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citations and quotations omitted). The “determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record.” Wall, 561 F.3d at 1052 (citations, quotations, and brackets omitted).

         The Social Security Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401 et seq. A disability is an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C. § 1382c(a)(3)(A); see 20 C.F.R. §404.1509 (duration requirement). Both the “impairment” and the “inability” must be expected to last not less than twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).

         The five-step sequential evaluation is described at 20 C.F.R. § 404.1520(a)(4), (b)-(g). “If the claimant is not considered disabled at step three, but has satisfied her burden of establishing a prima facie case of disability under steps one, two, and four, the burden shifts to the Commissioner to show the claimant has the [RFC] to perform other work in the national economy in view of [his] age, education, and work experience.” Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). “The ...

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