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Hawkins v. Saul

United States District Court, W.D. Oklahoma

September 23, 2019

FLORETHA HAWKINS, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          BERNARD M. JONES, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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.[1] For the reasons set forth below, it is recommended that the Commissioner's decision be affirmed.

         I. Procedural Background

         On 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.

         II. The ALJ's Decision

         The ALJ 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 29.

         At step 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.

         The ALJ 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 or restrictions.

Id. at 35.

         Finally, 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.

         III. Claims Presented for Judicial Review

         Although 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.

         IV. Standard of Review

         Judicial 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 determination.”).

         V. Analysis

         A. The ALJ's Alleged Error in Finding Plaintiff's Impairments Did Not Meet

         a Listing at Step Three

         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. 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.

         To meet 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). Further,

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 ...

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