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Mize v. Saul

United States District Court, N.D. Oklahoma

July 30, 2019

ANDREW SAUL, Commissioner of Social Security Administration, Defendant.


          TERENCE C. KERN, United States District Judge.

         Before the court is the Report and Recommendation of United States Magistrate Judge Frank H. McCarthy on the judicial review of a decision by the Commissioner of the Social Security Administration denying Social Security disability benefits and the Objections thereto filed by plaintiff, Sheila Dawn Mize. Docs. 22, 23. The Magistrate Judge recommended the Commissioner's decision be affirmed. Mize objects to the recommendation.

         I. Standard of Review

         Pursuant to Fed.R.Civ.P. 72(b)(3), “[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” However, even under a de novo review of such portions of the Report and Recommendation, this court's review of the Commissioner's decision is limited to a determination of “whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” 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.” Id. It is more than a scintilla, but less than a preponderance. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). The court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)). Even if the court would have reached a different conclusion, the Commissioner's decision stands if it is supported by substantial evidence. Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1500 (10th Cir. 1992).

         A claimant for disability benefits bears the burden of proving a disability. 42 U.S.C. § 423(d)(5); 20 C.F.R. §§ 404.1512(a), 416.912(a). A disability is a physical or mental impairment “that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). “Disabled” is defined under the Social Security Act as 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). To meet this burden, plaintiff must provide medical evidence of an impairment and the severity of that impairment during the time of her alleged disability. 20 C.F.R. §§ 404.1512(b), 416.912(b). “A physical impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [an individual's] statement of symptoms.” 20 C.F.R. §§ 404.1508, 416.908. The evidence must come from “acceptable medical sources, ” such as licensed and certified psychologists and licensed physicians. 20 C.F.R. §§ 404.1513(a), 416.913(a). A plaintiff is disabled under the Act only if her “physical or mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work in the national economy.” 42 U.S.C. § 423(d)(2)(A).

         Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920; Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (setting forth the five steps in detail). The claimant bears the burden of proof at steps one through four. Williams, 844 F.2d at 751 n. 2. At step one, a determination is made as to whether the claimant is presently engaged in substantial gainful activity. Id. at 750. At step two, a determination is made whether the claimant has a medically determinable impairment or combination of impairments that significantly limit her ability to do basic work activities. Id. at 751. At step three a determination is made whether the impairment is equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. Id. If it is, the claimant is entitled to benefits. Id. If it is not, the evaluation proceeds to the fourth step, where the claimant must show that the impairment prevents her from performing work she has performed in the past. Id. If the claimant is able to perform her previous work, she is not disabled. Id. If she is not able to perform her previous work, then the claimant has met her burden of proof, establishing a prima facie case of disability. The evaluation process then proceeds to the fifth and final step: determining whether the claimant has the residual functional capacity (“RFC”)[1] to perform other work in the national economy in view of her age, education, and work experience. Id. The Commissioner bears the burden at step five, and the claimant is entitled to benefits if the Commissioner cannot establish that the claimant retains the capacity “to perform an alternative work activity and that this specific type of job exists in the national economy.” Id. (citation omitted).

         II. Background

         Plaintiff was 41 years old on the alleged date of onset of disability and 45 on the date of the ALJ's denial decision. She has a high school education and formerly worked as a collection clerk, receptionist, deep fat fry cook, fast food cashier, general hardware salesperson and secretary. She claims to have been unable to work since November 1, 2012, as a result of back pain from scoliosis, depression, anxiety, panic attacks, restless leg syndrome and sleep apnea.

         The ALJ determined that Plaintiff engaged in full time work in 2015 and in the third quarter of 2016, but there had been a continuous twelve-month period during which she did not engage in substantial gainful activity. The ALJ concluded that during the period when Plaintiff was not working, she retained the residual functional capacity (“RFC”) to perform light work activity- meaning that she had the ability to lift, carry, push and pull 20 pounds occasionally and ten pounds frequently and could sit, stand or walk six hours in an eight-hour workday with normal breaks; however she could only occasionally stoop. R. 18. Based on the testimony of a vocational expert, the ALJ determined that Plaintiff is able to perform her past relevant work as a collection clerk, fast food cashier and receptionist as those jobs were actually or generally performed. Thus, the case was decided at step four 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) (setting out and describing in detail the five steps).

         III. Plaintiff's Allegations

         Plaintiff contends the ALJ's rejection of the opinion of treating physician David Wiegman, M.D., is not supported by substantial evidence; the ALJ improperly relied on the opinions of the state agency physicians; and the RFC for the ability to perform the mental requirements of work is not supported by substantial evidence.

         IV. Analysis

         As the Magistrate Judge noted, the period of October 1, 2016, to the date of the ALJ's denial decision, March 21, 2017, was the appropriate focus of analysis despite not covering 12 months, because if Plaintiff was unable to perform substantial gainful activity during that time and the inability to do so was expected to last for a continuous period of not less than 12 months, she would meet the definition of disability. Doc. 22 at 3-4.

         A. Consideration of Dr. ...

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