United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Toole (Plaintiff) brings this action for judicial review of
the Commissioner of Social Security's final decision that
he was not "disabled" under the Social Security
Act. See 42 U.S.C. §§ 405(g),
423(d)(1)(A). The matter has been referred to the undersigned
Magistrate Judge for proceedings consistent with 28 U.S.C.
§ 636(b)(1)(B), (b)(3) and Fed.R.Civ.P. 72(b).
See Doc. ll.
contends the ALJ erred during the last analytical step, when
he concluded Plaintiff could perform work that exists in the
national economy. After careful review, the undersigned
recommends the entry of judgment affirming the
Commissioner's final decision. See 42 U.S.C.
Social Security Act defines "disability" as the
"inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment that can be expected to result in death or which
has lasted or can be expected to last for a continuous period
of not less than 12 months." 42 U.S.C. §
423(d)(1)(A). "This twelve-month duration requirement
applies to the claimant's inability to engage in any
substantial gainful activity, and not just his underlying
impairment." Lax v. Astrue, 489 F.3d 1080, 1084
(10th Cir. 2007) (citing Barnhart v. Walton, 535
U.S. 212, 218-19 (2002)).
Burden of proof.
"bears the burden of establishing a disability" and
of "ma[king] a prima facie showing that he can no longer
engage in his prior work activity." Turner u.
Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If
Plaintiff makes that prima facie showing, the burden of proof
then shifts to the Commissioner to show that Plaintiff
retains the capacity to perform a different type of work and
that such a specific type of job exists in the national
Administrative Law Judge.
assigned to Plaintiffs case applied the standard regulatory
analysis to determine whether Plaintiff had been under a
disability within the relevant timeframe. AR 17-32;
see 20 C.F.R. § 404.1520(a)(4); see also
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009)
(describing the five-step process). The ALJ found Plaintiff:
(1) had two severe physical impairments, seizure disorder and
asthma/very mild obstructive lung defect;
(2) did not have an impairment or combination of impairments
that met or medically equaled the severity of a listed
(3) had the residual functional capacity to perform medium
work but could never climb ropes, ladders, and scaffolds;
must avoid exposure to workplace hazards such as dangerous
moving machinery, unprotected heights, open flame, sharp
objects, bodies of water, and the operation of any kind of
moving vehicle, equipment, and apparatus; and must avoid