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Tracy L.W. v. Saul

United States District Court, N.D. Oklahoma

September 6, 2019

TRACY L.W., Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security Administration,, Defendant.

          OPINION AND ORDER

          CLAIRE V. EAGAN O UNITED STATES DISTRICT JUDGE

         Now before the Court is the Report and Recommendation (Dkt. # 19) of the magistrate judge recommending that the Court affirm defendant's decision to deny plaintiff's claim for disability benefits. Plaintiff has filed an objection to the report and recommendation asserting two arguments. First, plaintiff argues that the administrative law judge (ALJ) erred by failing to discuss Listing 5.08 at step three of her written decision. Second, plaintiff claims that the ALJ's findings concerning plaintiff's credibility were not supported by substantial evidence.

         I.

         On September 19, 2014, plaintiff filed a claim for disability benefits, and her claim was denied initially and upon reconsideration. Plaintiff requested a hearing before an ALJ and a hearing was held on February 15, 2017. Plaintiff was represented by counsel at the hearing.

         At the hearing, plaintiff's counsel asked the ALJ to consider Listing 5.08 based on plaintiff's low weight, but the attorney did not believe that plaintiff had been diagnosed with a digestive disorder that caused weight loss. Dkt. # 10, at 48-49. The ALJ stated that she would review this listing, but that she did not believe there was a diagnosis that would support the application of the listing. Id. at 49. Plaintiff's counsel stated that plaintiff's primary physical problems concerned her back, hips, and neck, and that plaintiff suffered from asthma. Plaintiff had also been diagnosed with depression and a panic disorder. Id. at 50. Plaintiff testified that she has a high school diploma, and she has worked intermittently since her date of alleged onset of disability of January 1, 2002. Id. at 53-54. Plaintiff explained that she has been unable to work because she is unable to sit or stand for any substantial period of time and she is unable to lift any object over three or four pounds. Id. at 55. Upon questioning by plaintiff's counsel, plaintiff testified that her back and hips bother her if she sits for more than five or ten minutes, and she has difficulty with bending and balance. Id. at 57-58. Plaintiff had anorexia when she was a teenager and she has a hard time maintaining a consistent body weight, but she denied that she had any digestive problems. Id. at 60. Plaintiff rarely leaves the house, and she avoids driving in case she suffers from a panic attack while driving. Id. at 63. The ALJ called a vocational expert (VE) to testify, and he stated that plaintiff had no past relevant work that could be considered. Id. at 67-68. The ALJ asked the VE two questions concerning a hypothetical claimant, and in both cases the VE testified that the hypothetical claimant could perform jobs available in the national economy. Id. at 68-69. However, if plaintiff's testimony were accepted as entirely credible, she would not be able to work due to chronic absenteeism. Id. at 71.

         On March 23, 2017, the ALJ issued a written decision finding at step five of the analysis that plaintiff was not disabled. Plaintiff had not engaged in any substantial gainful activity since September 19, 2014, and she had the severe impairments of major depressive disorder, spine disorder with scoliosis and kyphosis, post-traumatic stress disorder, and anxiety. Id. at 25. At step three of the analysis, the ALJ determined that plaintiff did not have any impairment or combination of impairments the met or equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 26. The ALJ noted that plaintiff had a nonsevere impairment of asthma and that environmental limitations were included in the residual functional capacity (RFC), but the ALJ did not discuss plaintiff's low body weight or any digestive disorder at step three. Id. The ALJ found at step four that plaintiff had the following RFC:

After careful consideration of the entire record, I find that the claimant has the (RFC) to [be] able to lift, carry, push or pull up to 10 pounds frequently and 20 pounds occasionally; able to sit for up to 6 hours in an 8-hour workday; able to stand and/or walk up to 6 hours in an 8-hour workday; able to frequently climb ladders, ropes or scaffolds; job should not involve concentrated exposure to dust, odors, fumes or pulmonary irritants; able to perform simple, routine and repetitive tasks; able to occasionally interact with supervisors and coworkers; should never interact with the general public; job should not require more than ordinary and routine changes in work setting or work duties, and job should not require travel to unfamiliar places or use of public transportation.

Id. at 27. The ALJ thoroughly summarized plaintiff's testimony and the medical evidence, as well as third party function reports and the opinions of medical consultants, and she concluded that plaintiff's testimony concerning her symptoms and limitations was not entirely consistent with the objective medical evidence. Id. at 28-36. Plaintiff had no past relevant work at step four, but the ALJ relied on the VE's testimony to conclude that there were jobs available in the national economy that plaintiff could perform. Id. at 37. The ALJ found that plaintiff was not disabled and denied plaintiff's claim for disability benefits.

         Plaintiff sought review of her claim by the Appeals Council, but the Appeals Council found no basis to review the ALJ's decision. Id. at 5. On May 11, 2018, plaintiff filed this case challenging the denial of her claim for disability benefits. The matter was referred to a magistrate judge for a report and recommendation, and the magistrate judge has recommended that the Court affirm the ALJ's decision. Dkt. # 19. Plaintiff has filed a timely objection to the report and recommendation, and defendant has responded to plaintiff's objections. Dkt. ## 20, 21.

         II.

         Without consent of the parties, the Court may refer any pretrial matter dispositive of a claim to a magistrate judge for a report and recommendation. However, the parties may object to the magistrate judge's recommendation within 14 days of service of the recommendation. Schrader v. Fred A. Ray, M.D., P.C., 296 F.3d 968, 975 (10th Cir. 2002); Vega v. Suthers, 195 F.3d 573, 579 (10th Cir. 1999). The Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The Court may accept, reject, or modify the report and recommendation of the magistrate judge in whole or in part. Fed.R.Civ.P. 72(b).

         III.

         Plaintiff argues that the ALJ erred at step three of the analysis by not considering whether plaintiff qualified under Listing 5.08, which concerns low weight or body mass. Dkt. # 20, at 3-5. Plaintiff also claims that the ALJ erred by finding that her subjective complaints concerning her limitations were not wholly consistent with the medical evidence. Id. at 6-7.

         The Social Security Administration has established a five-step process to review claims for disability benefits. See 20 C.F.R. ยง 404.1520. The ...


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