United States District Court, N.D. Oklahoma
OPINION AND ORDER
H. MCCARTHY UNITED STATES MAGISTRATE JUDGE.
Stephanie E., seeks judicial review of a decision of the
Commissioner of the Social Security Administration denying
disability benefits. In accordance with 28 U.S.C. §
636(c)(1) & (3), the parties have consented to proceed
before a United States Magistrate Judge.
role of the court in reviewing the decision of the
Commissioner under 42 U.S.C. § 405(g) is limited to a
determination of whether the decision is supported by
substantial evidence and whether the decision contains a
sufficient basis to determine that the Commissioner has
applied the correct legal standards. See Briggs ex rel.
Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir.
2001); Winfrey v. Chater, 92 F.3d 1017 (10th Cir.
1996); Castellano v. Secretary of Health & Human
Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). Substantial
evidence is more than a scintilla, less than a preponderance,
and is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28
L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). The court may neither
reweigh the evidence nor substitute its judgment for that of
the Commissioner. Casias v. Secretary of Health &
Human Servs., 993 F.2d 799, 800 (10th Cir. 1991). Even
if the court would have reached a different conclusion, if
supported by substantial evidence, the Commissioner’s
decision stands. Hamilton v. Secretary of Health &
Human Servs., 961 F.2d 1495 (10th Cir. 1992).
was 40 years old on the alleged date of onset of disability
and 43 on the date of the denial decision. Plaintiff has a
Bachelor’s Degree in Psychology, [R. 41], and her past
work experience includes a veterans’ service
representative. [R. 55]. Plaintiff claims to have become
disabled as of September 24, 2014 due to vestibular migraines,
Hashimoto’s disease, degenerative disc disease, and
bulging discs in lower back. [R. 43].
found that Plaintiff has severe impairments relating to
Hashimoto’s thyroiditis, fibromyalgia, sleep apnea, and
obesity. Non-severe impairments include asthma, status post
surgery for thoracic outlet syndrome, and history of migraine
headaches. [R. 17]. The ALJ determined that Plaintiff has the
residual functional capacity to perform sedentary exertional
work as she is able to lift and/or carry ten pounds
occasionally and up to ten pounds frequently. Plaintiff is
able to stand and/or walk at least two hours in an eight-hour
workday and sit at least six hours in an eight-hour workday.
Plaintiff should avoid hazards such as heights, open
machinery, ladders, or scaffolds. Plaintiff should not drive
as part of work. Plaintiff is able to perform work requiring
occasional balancing, stooping and kneeling, however, should
avoid work above the shoulder. [R. 19]. The ALJ determined at
step four that Plaintiff could perform her past relevant work
as a veterans’ service representative. Further, based
on the testimony of the vocational expert, the ALJ determined
at step five that there are a significant number of jobs in
the national economy that Plaintiff could perform. [R.
26-27]. The case was thus decided at step four of the
five-step evaluative sequence for determining whether a
claimant is disabled with an alternative step five finding.
See Williams v. Bowen, 844 F.2d 748, 750-52 (10th
Cir. 1988) (discussing five steps in detail).
asserts that the ALJ: 1) failed to properly consider
Plaintiff’s allegations; 2) finding that
Plaintiff’s migraines did not equal Listing 11.02 is
not supported by substantial evidence; 3) failed to properly
consider the medical opinions; and 4) RFC assessment is not
supported by substantial evidence. [Dkt. 13');">13');">13');">13, p. 4].
argues that the ALJ did not properly consider her subjective
complaints and symptoms concerning migraine headaches. [Dkt.
13');">13');">13');">13, p. 4-8]. Plaintiff contends that when evaluating the
impact of her allegations, the ALJ only considered the
objective evidence. [Dkt. 13');">13');">13');">13, p. 5]. The ALJ must also
consider other evidence including activities of daily living,
location of pain, aggravating factors, medication, and
treatment. See 20 C.F.R. § 404.1529(c)(3). [Dkt. 13');">13');">13');">13, p.
6]. The ALJ did not discuss any of the emergency room visits
made because of headaches, [R. 470, 474, 478, 482, 487, 491],
the various medications used to treat Plaintiff’s
migraines, or her frequent and consistent complaints of
migraines. Further, Plaintiff’s activities were not
inconsistent with her allegations. [Dkt. 13');">13');">13');">13, p. 6].
the Social Security Administration has eliminated the use of
the term “credibility” from the agency’s
sub-regulatory policy, the agency continues to evaluate a
disability claimant’s symptoms using a two-step
process: First, we must consider whether there is an
underlying medically determinable physical or mental
impairment(s) that could reasonably be expected to produce an
individual’s symptoms, such as pain. Second, once an
underlying physical or mental impairment(s) that could
reasonably be expected to produce an individual’s
symptoms is established, we evaluate the intensity and
persistence of those symptoms to determine the extent to
which the symptoms limit an individual’s ability to
perform work-related activities . . . . Soc. Sec. Ruling
(SSR) 16-3p; Titles II & XVI: Evaluation of
Symptoms in Disability Claims, 2016 WL 1119029 at 2 (Mar. 16,
2016) (superseding SSR 96-7p; Policy Interpretation
Ruling Titles II and XVI: Evaluation of Symptoms in
Disability Claims: Assessing the Credibility of an
Individual’s Statements, 1996 WL 374186 (July 2,
1996)). The two-step process substantially restates the prior
two-step process set ...