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Rivera v. Berryhill

United States District Court, S.D. Texas, Brownsville Division

March 1, 2017

FERNANDO RIVERA, JR., Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          Ignacio Torteya, III United States Magistrate Judge

         The Court is in receipt of Fernando Rivera, Jr.'s Complaint seeking review of the Social Security Administration Commissioner's final decision denying his application for disability insurance benefits under Title II of the Social Security Act. Dkt. No. 1. Defendant, Nancy A. Berryhill, (hereinafter, the “Commissioner”) asks the Court to affirm her decision. Dkt. No. 16 at 10. It is recommended that the Court affirm the Commissioner's decision and deny Rivera's claims.

         I. JURISDICTION

         The Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3).

         II. BACKGROUND

         On May 19, 2012, Rivera protectively filed an application for a period of disability and disability insurance benefits alleging an onset disability date of April 26, 2012. TR at 131.[1] There, Rivera listed a number of ailments pertaining to limited use, function, and feeling of his back, wrists, legs, and arms. See TR at 134. In his functionality report, Rivera states, among other things, that these ailments cause him severe pain that affects his ability to perform daily tasks and movements such as bending, lifting, and walking. TR at 151. Rivera also claims that these ailments affect his memory and concentration. Id.

         The Social Security Administration denied his claim initially on July 24, 2012, and upon reconsideration on November 14, 2012. TR at 53, 59. Rivera filed a request for a hearing, and Administrative Law Judge (“ALJ”) Thomas Norman conducted an administrative hearing on December 5, 2013. TR at 27. Rivera was represented at the hearing by a non-attorney representative, Delmar Fankhauser. On April 21, 2014, the ALJ issued an opinion finding that Rivera was not disabled under §§ 216(i) and 223(d) of the Social Security Act. TR at 20. Rivera appealed to the Appeals Council (hereinafter, the “Council”), which denied Rivera's request for review on June 15, 2015. TR at 1, 5. Rivera timely filed this Complaint challenging the Commissioner's final decision on August 19, 2015. Dkt. No. 1.

         III. STANDARD OF REVIEW

         The Court's review of the Commissioner's final decision to deny benefits under 42 U.S.C. § 405(g) is limited to two inquiries: (1) whether the proper legal standards were used in evaluating the evidence; and (2) whether there is substantial evidence in the record as a whole to support the decision that the claimant is not disabled as defined by the Act. Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999). Evidence is considered substantial if it is relevant and sufficient enough for a reasonable mind to accept it as adequate to support a conclusion. Legget v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). It is more than a scintilla, but less than a preponderance. Id. A no-substantial-evidence finding is appropriate only where no credible evidentiary choices or medical findings exist to support the decision. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). If the findings of the Commissioner are supported by substantial evidence in the record as a whole, the findings are conclusive and must be affirmed. Brown, 192 F.3d at 496.

         Evidentiary conflicts are for the Commissioner, not the courts, to resolve. The Court “may not reweigh the evidence in the record, nor try the issues de novo, nor substitute [its] own judgment for that of the [Commissioner], even if the evidence preponderates against the [Commissioner's] decision.” Brown, 192 F.3d at 496 (alternation in original) (quoting Johnson v. Bowen, 864 F.2d 340, 343). The Court's task is deferential judicial review of the Commissioner's disability decision, but not so deferential as to result in meaningless review. Id. Four elements of proof are weighed in determining if substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience. Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995).

         IV. ESTABLISHING DISABILITY

         A claimant is not entitled to benefits under Titles II and XVI unless she is “disabled” as defined by the Act. 42 U.S.C. § 423(d)(1)(A); Heckler v. Campell, 461 U.S. 458, 459-61 (1983). The law and regulations governing benefits under both Titles are the same. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).[3] The Act defines “disability” as the “inability to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which 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). A sequential five-step approach is used to determine whether the claimant is disabled. See 20 C.F.R. § 404.1520(a)(4), § 416.920(a)(4).

         At steps one through four, the claimant bears the burden of proving that: (1) they have not engaged in substantial gainful activity during the relevant period; (2) they have a severe impairment; (3) the impairment is either a listed impairment in the appendix to the regulations, or equivalent to a listed impairment; and, (4) if they do not have an impairment qualifying as a listed impairment or its equivalent, the impairment or combination of impairments they do have still gives them a residual functioning capacity that prevents them from performing past relevant work. Leggett, 67 F.3d at 563, n. 2. Once the claimant meets her burden in the first four steps, the burden shifts to the Commissioner to establish that the claimant can perform substantial gainful employment available in the national economy. Greenspan, 38 F.3d at 236. The burden then shifts back to the claimant to rebut this finding. Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000). A determination at any step that the claimant is or is not disabled within the meaning of the Act ends the inquiry. Leggett, 67 F.3d at 564.

         V. ...


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