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Barlow v. Berryhill

United States District Court, N.D. Texas, Amarillo Division

March 10, 2017

TIM C. BARLOW, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION TO AFFIRM THE DECISION OF THE COMMISSIONER

          CLINTON E. AVERTTTE UNITED STATES MAGISTRATE JUDGE.

         Plaintiff TIM C. BARLOW brings this cause of action pursuant to 42 U.S.C. § 405(g) seeking review of a final decision of defendant NANCY A. BERRYHILL, Acting Commissioner of Social Security (Commissioner), denying plaintiffs applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and XVI, respectively, of the Social Security Act, 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3). For the reasons hereinafter expressed, the undersigned United States Magistrate Judge recommends the Commissioner's decision finding plaintiff not disabled and not entitled to benefits be AFFIRMED.

         I. PROCEEDINGS

         On June 24, 2013, plaintiff TIM C. BARLOW applied for DIB and SSI alleging a disability onset date of January 1, 2010. (Tr. 14, 37, 73, 85, 182, 184, 265). Plaintiff asserts his disabling conditions include borderline personality disorder, hepatitis C, neck and back problems, anxiety and asthma. (Tr. 205, 227, 265-266). The Commissioner denied benefits initially on November 12, 2013 and upon reconsideration on January 16, 2014. (Tr. 133-38, 141-44). Plaintiff elected to have an administrative hearing and, on July 18, 2014, a video hearing was held before an Administrative Law Judge (ALJ). (Tr. 33-72, 147, 154).

         Plaintiff was born November 8, 1959 and was 51 years old at the onset of his alleged disability. (Tr. 36). He obtained his high school equivalency degree (GED) in 1976 and after two years of specialized training, received his license as a vocational nurse. (Tr. 37, 206, 265). Plaintiff has a past relevant work history which includes work as a warehouseman, work in the restaurant and retail industries and work as a nurse's aide and charge nurse. (Tr. 50-51, 206, 265). On November 13, 2014, the ALJ rendered an unfavorable decision, finding plaintiff not disabled and not entitled to benefits at any time relevant to the decision. (Tr. 11-31). Following the ALJ's unfavorable decision, plaintiff sought federal judicial review.

         In reaching his decision of not disabled, the ALJ followed the five-step sequential process in 20 C.F.R. §§ 404.1520(a) and 416.920(a). At Step One, the ALJ determined plaintiff had not engaged in substantial gainful activity (SGA) since his alleged onset date of January 1, 2010. (Tr. 16). At Step Two, the ALJ found plaintiffs impairments of neck and back pain, asthma, dysthymia, pain disorder and personality disorder to be severe, but found plaintiffs hepatitis C condition to be a non-severe impairment. (Tr. 16-17). At Step Three, the ALJ concluded plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, specifically finding that plaintiff did not meet or medically equal the criteria in listings 12.04 and 12.08. (Id.).

         After an extensive review of the medical record the ALJ determined plaintiff was not entirely credible regarding his impairments and their impact on his ability to work. The ALJ then concluded plaintiff retained the residual functional capacity (RFC) to occasionally lift and/or carry 50 pounds, frequently lift and/or carry 25 pounds, to stand and/or walk at least 6 hours in an 8-hour workday and to sit at least 6 hours in an 8-hour workday. (Tr. 18-25). The ALJ further found plaintiff should avoid concentrated exposure to things such as odors, fumes and dust, was limited to simple, repetitive tasks, could relate to supervisors and coworkers only superficially, and could not work with the general public. (Id.).

         At Step Four, the ALJ found plaintiff could return to his past relevant work as a warehouse worker, a job the ALJ classified as medium, unskilled and not requiring the performance of work-related activities precluded by plaintiffs RFC. (Tr. 25). Alternatively, at Step Five, based on the RFC determination and vocational expert (VE) testimony, the ALJ found plaintiff was capable of performing other jobs existing in significant numbers in the national economy including dishwasher and hand packager. (Id.). The ALJ found plaintiff was not under a disability at any time between January 1, 2010, the alleged onset date, and November 13, 2014, the date of the ALJ decision. (Id.).

         II. STANDARD OF REVIEW

         The Court's role in reviewing disability determinations by the Commissioner is limited. The sole question is whether substantial evidence exists in the record, considered as a whole, to support the Commissioner's factual findings, and whether any errors of law were made. Anderson v. Sullivan, 887 F.2d 630, 633 (5th Cir. 1989). Substantial evidence is "such relevant evidence as a responsible mind might accept to support a conclusion. While it is more than a mere scintilla, it is less than a preponderance." Boydv. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). To determine whether substantial evidence of disability exists, the following elements must be weighed: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) claimant's subj ective evidence of pain and disability; and (4) claimant's age, education, and work history. Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991) (citing DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972)). If the Commissioner's findings are supported by substantial evidence, they are conclusive, and the reviewing court may not substitute its own judgment for that of the Commissioner, even if the court determines the evidence preponderates toward a different finding. Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980). Conflicts in the evidence are to be resolved by the Commissioner, not the courts, Laffoon v. Califano, 558 F.2d 253, 254 (5th Cir. 1977), and only a "conspicuous absence of credible choices" or "no contrary medical evidence" will produce a finding of no substantial evidence. Homes v. Heckler, 101 F.2d 162, 164 (5th Cir. 1983). Stated differently, the level of review is not de novo. The fact that the ALJ could have found plaintiff to be disabled is not the issue. The ALJ did not do this, and the case comes to federal court with the issue being limited to whether there was substantial evidence to support the ALJ's decision.

         III. ISSUES

         The ALJ found plaintiff not disabled at Step Four and alternatively found him not disabled at Step Five of the five-step sequential analysis. Consequently, the court's review is limited to whether there was substantial evidence in the record, taken as a whole, to support the finding that plaintiff had the ability to return to his past work as a warehouse worker and/or to perform other work that exists in significant numbers in the regional and national economies, and whether proper legal standards were applied in making this determination. Plaintiff presents the following issues for review:

1. Whether the ALJ and Appeals Council failed to properly consider the opinions and evidence contained in the medical records of plaintiff s treating physicians;
2. Whether the ALJ and Appeals Council gave unreasonable weight to the opinions of non-treating physicians who never consulted with plaintiff;
3. Whether the ALJ and Appeals Council failed to properly apply the disability standards that would have resulted, if correctly applied, in a decision of disability;
4. Whether the decision of the ALJ and Appeals Council was supported by substantial evidence; and 5. Whether the plaintiffs due process rights were violated by the ALJ's ...

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