United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE.
the Court is the report and recommendation (Dkt. # 16) of
Magistrate Judge Frank H. McCarthy recommending that the
Court affirm the decision of the Commissioner of the Social
Security Administration to deny plaintiff's claim for
disability benefits. Plaintiff has filed an objection (Dkt. #
17) to the report and recommendation, and she seeks remand
for further review. Defendant has filed a response to
plaintiff's objection (Dkt. # 18).
October 14, 2014, plaintiff applied for benefits, alleging
disability due to both physical and psychological conditions,
including loss of hearing, degenerative disc disease,
depressive disorder, anxiety disorder, and somatic
dysfunction disorder. Dkt. # 10, at 17. Plaintiff requested a
hearing before an administrative law judge (ALJ), and that
hearing was held on February 15, 2017. Dkt. # 10, at 15.
appeared at the hearing and was represented by an attorney.
Id. Plaintiff was fifty-three years old at the time
of the hearing and fifty years old when she claimed benefits.
Dkt. # 10, at 26. Plaintiff lives with her boyfriend, who
owns the house in which she resides. Dkt. # 10, at 73. She
receives food stamps, but has no income. Id. at 20.
She has not worked since the amended date of her alleged
disability, which is October 11, 2011. Id. Prior to
her alleged disability, in 2006, plaintiff worked as a
machine operator for EmbroidMe, a local embroidering company.
Id. at 76. While there, she did many tasks,
including operating machinery, cleaning, embroidering items,
and opening and unpacking boxes. Id. After working
for EmbroidMe, plaintiff worked in 2009 as a nail technician.
Id. at 76-77. Plaintiff testified that, while
working for EmbroidMe, she would not lift much weight, but
while working as a nail tech, she would lift ten to fifteen
pounds of weight at a time. Id. at 76, 78. Plaintiff
testified that she wears hearing aids. Id. at 79.
She is right-handed, but drops things with her right hand.
Id. at 20. She also testified that she has been
going to counseling and recovery services for at least five
years. Id. at 80. Plaintiff alleges that she cannot
carry more than five pounds of weight, and cannot sit, stand,
or walk for more than fifteen to thirty minutes at a time.
Id. at 80-81. She also complains of lower back pain,
neck pain, right shoulder pain, and trouble sleeping due to
her depression. Id. at 20, 82. Plaintiff went to
high school in South Korea, and English is her second
language. Id. at 20, 22. Plaintiff takes medication
for sleeping. Id. at 82.
disability hearing, the ALJ called vocational expert (VE) Ann
Young, L.P.C., a licensed professional counselor, to testify
about plaintiff's previous work history and her ability
to work. Id. at 87. The VE testified that plaintiff
has been a manicurist, which the VE described as a
semi-skilled job with sedentary exertion, and an embroidery
machine operator, which the VE described as an unskilled job
requiring light exertion according to the Dictionary of
Occupational Titles (4th ed. Rev. 1991) [DOT]. Id.
at 88-89. The ALJ next asked the VE a series of
hypotheticals. Id. at 89. The ALJ first asked
whether a hypothetical individual of the plaintiff's age,
education, and past jobs, who could understand simple one to
three step instructions with routine supervision, with breaks
every two hours, and who occasionally interacted with
supervisors and coworkers but never with the general public,
could perform any of the jobs plaintiff had occupied prior to
claiming disability. Id. at 89-90. The VE responded
that the hypothetical would allow for work as an embroidery
machine operator (DOT § 786.685-018) but not as a
manicurist (DOT § 331.674-010). Id. at 90. The
VE was next asked whether this hypothetical individual could
perform any other jobs. Id. The VE answered that the
individual could be a hand packager (DOT § 920.587-018),
a laundry sorter (DOT § 361.684-014), or a dishwasher
(DOT § 318.687-010), which are all unskilled position
with medium exertion according to DOT. Id. at 90-91.
was asked further to assume that the hypothetical individual
is able to lift, carry, push[, ] or pull up to ten pounds
frequently and twenty pounds occasionally, is able to sit up
to six hours in an eight hour day, is able to stand and/or
walk up to six hours in an eight hour work day, is able to
perform simple, routine tasks with regular breaks every two
hours, is able to occasionally interact with supervisors as
needed to receive instructions, is able to work in proximity
to coworkers but should have no more than occasional direct
work interaction with coworkers and should never interact
with the general public.
Id. at 91. The ALJ asked if this individual could
perform the jobs the VE described or any other jobs.
Id. at 91-92. The VE responded that the hypothetical
individual could work as an embroidery machine operator (DOT
§ 786.685-018), a laundry sorter (DOT §
361.684-014), an assembler (DOT § 706.684-022), or a
garment folder (DOT § 789.687-066). Id. When
the VE was then asked to narrow the results to only those
that have a noise level at or less than a routine office
setting, the VE stated that the embroidery machine operator
and the laundry sorter would be taken out. Id. at
92-93. The ALJ then closed the hearing, but prior to doing so
asked plaintiff's attorney to explain the process to
plaintiff, “because [the ALJ] hate[s] felling like [he
is] having to shout at [plaintiff].” Id. at
March 23, 2017, the ALJ issued a written decision finding
plaintiff not disabled. Id. at 12. The ALJ found
that plaintiff had not engaged in substantial gainful
activity since October 14, 2014, that she had severe
impairments affecting her ability to work, and that her
impairments were not equivalent to one of those listed in 20
C.F.R., Part 404, Subpart P, Appendix 1. Id. at
17-18. The ALJ next formulated plaintiff's residual
functional capacity (RFC), taking into account the medical
evidence and testimony. Id. at 20. The ALJ found
that plaintiff could perform “light work, ” as
defined by 20 C.F.R. 416.967(b), with certain restrictions.
Id. Among the restrictions in plaintiff's RFC
was the determination that plaintiff
is able to lift, carry, push or pull up to ten pounds
frequently and twenty pounds occasionally; able to sit for up
to six hours in an eight hour workday; able to stand and/or
walk up to six hours in an eight hour work day; . . . able to
perform simple, routine tasks with regular breaks every two
hours; able to occasionally interact with supervisors as
needed to receive work instructions; able to work in
proximity to coworkers but should have no more than
occasional direct work interaction with coworkers; [and]
should never interact with the general public.
Id. Based on the RFC and the record, the ALJ
determined that plaintiff could perform her past work as an
embroidery machine operator. Id. at 26. The ALJ also
found that plaintiff could perform other occupations present
in the national economy, specifically listing the laundry
sorter (194, 000 jobs in the national economy), assembler
(208, 000 jobs in the national economy), or garment folder
(75, 000 jobs in the national economy), all being positions
previously identified by the VE, and all of which the DOT
defines as “light” exertion, unskilled work.
Id. at 27. The ALJ concluded by stating that
plaintiff was “capable of making a successful
adjustment to other work that exists in significant numbers
in the national economy.” Id.
3, 2015, the Appeals Council denied plaintiff's request
for review of the ALJ's decision. Id. at 15.
Plaintiff thereafter sought judicial review, arguing that the
ALJ committed several errors, including the step four
determination, the step five determination, and the RFC
determination. Dkt. # 17, at 1-6. The Court referred the case
to the magistrate ...