United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
BERNARD M. JONES, UNITED STATES MAGISTRATE JUDGE.
Floretha Hawkins, seeks judicial review of the Social
Security Administration's denial of her application for
disability insurance benefits (DIB). Chief United States
District Judge Timothy D. DeGiusti has referred the matter
for proposed findings and recommendations. See 28
U.S.C. § 636(b)(1)(B) and (C). The Commissioner has
filed the Administrative Record (AR), [Doc. No. 15], and both
parties have briefed their positions. For the reasons set forth
below, it is recommended that the Commissioner's decision
February 13, 2018, an Administrative Law Judge (ALJ) issued
an unfavorable decision finding Plaintiff was not disabled
and, therefore, not entitled to DIB. AR 27-43. The Appeals
Council denied Plaintiff's request for review.
Id. at 1-9. Accordingly, the ALJ's decision
constitutes the Commissioner's final decision. See
Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
Plaintiff timely commenced this action for judicial review.
The ALJ's Decision
followed the sequential evaluation process required by agency
regulations. See Wall v. Astrue, 561 F.3d 1048, 1051
(10th Cir. 2009) (explaining process); see also 20
C.F.R. § 404.1520. The ALJ first determined that
Plaintiff meets the insured status requirement through
December 31, 2020 and has not engaged in substantial gainful
activity since December 14, 2015, her alleged onset date. AR
two, the ALJ determined Plaintiff suffers from the following
severe impairments: “osteoarthrosis, an infectious or
parasitic disorder, and costochondritis.” Id.
at 30. Then, at step three, the ALJ found Plaintiff's
impairments do not meet or medically equal any of the
impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1.
Id. at 34-35.
next determined Plaintiff's residual functional capacity
(RFC), concluding that:
[she can] perform light exertion work . . . except . . . must
avoid concentrated exposure to extreme heat and extreme cold;
. . . can communicate simple information; and . . . can use a
telephone to communicate. [She] has no other physical
limitations or restrictions. [She] has no mental limitations
Id. at 35.
at step four, the ALJ determined Plaintiff can perform her
past relevant work as a housekeeper, Dictionary of
Occupational Titles (DOT) #323.687-014, and is not disabled
for purposes of the Social Security Act. Id. at 41.
Claims Presented for Judicial Review
Plaintiff identifies only two claims, her twenty-six-page
brief raises numerous interrelated grounds for relief. In
essence, Plaintiff alleges the ALJ: (1) erred in finding she
can perform her past work as housekeeper; (2) erred in
considering her speech limitations; (3) erred in assessing
her subjective complaints; (4) failed to order a consultative
examination to assess Plaintiff's academic limitations;
(5) improperly evaluated the medical evidence; and (6) erred
in finding Plaintiff did not meet a Listing at step three.
See Pl.'s Br. at 6-25. The Court addresses these
allegations in an order it finds most logical.
Standard of Review
review of the Commissioner's final decision is limited to
determining whether the factual findings are supported by
substantial evidence in the record and whether the correct
legal standards were applied. See Poppa v. Astrue,
569 F.3d 1167, 1169 (10th Cir. 2009); see also Bowman v.
Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (holding
that the court only reviews an ALJ's decision “to
determine whether the factual findings are supported by
substantial evidence in the record and whether the correct
legal standards were applied” and in that review,
“we neither reweigh the evidence nor substitute our
judgment for that of the agency” (citations and
internal quotation marks omitted)). Under such review,
“common sense, not technical perfection, is [the
Court's] guide.” Keyes-Zachary v. Astrue,
695 F.3d 1156, 1167 (10th Cir. 2012). The burden to show
prejudicial error on appeal rests with Plaintiff. See
Shinseki v. Sanders, 556 U.S. 396, 409 (2009)
(“[T]he burden of showing that an error is harmful
normally falls upon the party attacking the agency's
The ALJ's Alleged Error in Finding Plaintiff's
Impairments Did Not Meet
Listing at Step Three
three, the ALJ found Plaintiff's impairments do not meet
or medically equal any of the impairments listed at 20 C.F.R.
Part 404, Subpart P, App. 1. AR at 34-35. Specifically, the
ALJ considered Listing 3.02, which “requires evidence
of certain threshold findings on pulmonary function testing,
or of complications or exacerbations requiring three
hospitalizations within a 12-month period.”
Id. at 35. Plaintiff did not have the requisite
hospitalizations and thus the ALJ and Plaintiff focus on four
pulmonary function studies (PFS). Id.; see
also Pl.'s Br. at 22-23.
Listing 3.02, a claimant must show that for her height, she
had a forced expiratory volume (FEV1) value below a certain
threshold. See 20 C.F.R. pt. 404, subpt. P, app. 1,
§ 3.02(A). Plaintiff is 5 feet 2 inches, see AR
527, or 62 inches, so an FEV1 value of 1.15 or lower meets
Listing 3.02. See 20 C.F.R. pt. 404, subpt. P, app.
1, § 3.02(A). The FEV1 is tested through a spirometer.
AR 527, 531, 536, 541. According to the Listings:
Spirometry, which measures how well you move air into and out
of your lungs, involves at least three forced expiratory
maneuvers during the same test session. A forced expiratory
maneuver is a maximum inhalation followed by a forced maximum
exhalation, and measures exhaled volumes of air over time.
The volume of air you exhale in the first second of the
forced expiratory maneuver is the FEV1. The total volume of
air that you exhale during the entire forced expiratory
maneuver is the FVC. We use your highest FEV1 value to
evaluate your respiratory disorder under 3.02A . . .,
regardless of whether the values are from the same forced
expiratory maneuver or different forced expiratory maneuvers.
20 C.F.R. § Pt. 404, subpt. P, App. 1, 3.00(E)(1).
During testing, if your FEV1 is less than 70 percent of your
predicted normal value, we require repeat spirometry after
inhalation of a bronchodilator to evaluate your respiratory
disorder under these listings, unless it is medically
contraindicated. If you used a bronchodilator before the test
and your FEV1 is less than 70 percent of your predicted
normal value, we still require repeat spirometry after
inhalation of a bronchodilator unless the supervising
physician determines that it is not safe for you to take a
bronchodilator again (in which case we may need to reschedule
the test). If you do not have post-bronchodilator spirometry,
the test report must explain why. We can use the results of
spirometry administered without bronchodilators when the use
of bronchodilators is medically contraindicated.
Your forced expiratory maneuvers must be satisfactory. We
consider a forced expiratory maneuver to be satisfactory when
you exhale with maximum effort following a full inspiration,
and when the test tracing has a sharp takeoff and rapid rise
to peak flow, has a smooth contour, and either ...