United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN O UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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).
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
Social Security Administration has established a five-step
process to review claims for disability benefits.
See 20 C.F.R. § 404.1520. The ...