United States District Court, E.D. Oklahoma
DANSI RUSHING ex rel. DANNETTE L. RUSHING, Plaintiff,
ANDREW M. SAUL, Commissioner of the Social Security Administration,  Defendant.
REPORT AND RECOMMENDATION
P. SHREDER UNITED STATES MAGISTRATE JUDGE.
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
Security Law and Standard of Review
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.
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
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).
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.
of the Administrative Law Judge
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.
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
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 ...