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Rushing ex rel. Rushing v. Saul

United States District Court, E.D. Oklahoma

September 3, 2019

DANSI RUSHING ex rel. DANNETTE L. RUSHING, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of the Social Security Administration, [1] Defendant.

          REPORT AND RECOMMENDATION

          STEVEN P. SHREDER UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Dansi Rushing on behalf of Dannette L. Rushing, deceased (the “claimant”) requests judicial review of a denial of benefits by the Commissioner of the Social Security Administration pursuant to 42 U.S.C. § 405(g). She appeals the Commissioner's decision and asserts that the Administrative Law Judge (“ALJ”) erred in determining the claimant was not disabled. For the reasons discussed below, the Commissioner's decision should be AFFIRMED.

         Social Security Law and Standard of Review

         Disability under the Social Security Act is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment[.]” 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Social Security Act “only if h[er] physical or mental impairment or impairments are of such severity that [s]he is not only unable to do h[er] previous work but cannot, considering h[er] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy[.]” Id. § 423 (d)(2)(A). Social security regulations implement a five-step sequential process to evaluate a disability claim. See 20 C.F.R. §§ 404.1520, 416.920.[2]

         Section 405(g) limits the scope of judicial review of the Commissioner's decision to two inquiries: whether the decision was supported by substantial evidence and whether correct legal standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997). Substantial evidence is “‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); see also Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). The Court may not reweigh the evidence or substitute its discretion for the Commissioner's. See Casias v. Secretary of Health & Human Services, 933 F.2d 799, 800 (10th Cir. 1991). But the Court must review the record as a whole, and “[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); see also Casias, 933 F.2d at 800-01.

         Claimant's Background

         The claimant was forty-eight years old at the time of the administrative hearing (Tr. 49). She completed high school and worked as a cashier II, stock clerk, document specialist, commercial cleaner, customer service clerk, and child care worker (Tr. 49, 68-69). The claimant alleges inability to work since August 27, 2015, due to anxiety, depression, bulging discs in her lumbar spine, back pain, chest pain, and pain and weakness in her left leg (Tr. 57, 231, 233, 272).

         Procedural History

         On December 29, 2015, the claimant applied for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and for supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85 (Tr. 19, 231-38). Her applications were denied. ALJ James Bentley conducted an administrative hearing and determined that the claimant was not disabled in a written opinion dated December 2, 2016 (Tr. 19-30). The Appeals Council dismissed the claimant's request for review of her supplemental security income claim upon notice of her death and denied her request for review of her disability insurance benefit claim (Tr. 3-9, 12-15). Accordingly, the ALJ's written opinion is the final decision of the Commissioner for purposes of this appeal. See 20 C.F.R. § 404.981.

         Decision of the Administrative Law Judge

         The ALJ made his decision at steps four and five of the sequential evaluation. He found that the claimant could perform light work as defined in 20 C.F.R. § 404.1567(b) with occasional balancing, stooping, kneeling, crouching, crawling, and climbing ramps or stairs (Tr. 24). Additionally, he found the claimant should avoid concentrated exposure to dust, fumes, and poorly ventilated areas (Tr. 24). The ALJ then concluded that the claimant was not disabled because she could return to her past relevant work as a cashier II, and alternatively because there was work she could perform in the national economy, i. e., counter attendant, booth cashier, and sales attendant (Tr. 28-30).

         Review

         The claimant's sole contention of error is that the ALJ erred in evaluating her subjective complaints. The undersigned Magistrate Judge finds this contention unpersuasive for the following reasons.

         The ALJ found the claimant had the severe impairments of degenerative disc disease of the cervical and lumbar spine, chronic obstructive pulmonary disease (“COPD”), coronary artery disease, and obesity, but that her affective disorder, anxiety disorder, and hypertension were nonsevere (Tr. 21-22). The relevant medical evidence reveals that Dr. Nelson Onaro regularly treated the claimant for back pain and anxiety between May 2015 and July 2016 (Tr. 350-66, 422-56, 466-94, 527-29). Dr. Onaro often noted tenderness and moderate pain with range of motion testing in the claimant's lumbar spine and the claimant ...


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