United States District Court, N.D. Texas, Amarillo Division
REPORT AND RECOMMENDATION TO REVERSE THE DECISION OF
THE COMMISSIONER AND REMAND
CLINTON E. AVERITTE UNITED STATES MAGISTRATE JUDGE
KIMBERLY FUTRELL 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) under Title II of the
Social Security Act, 42 U.S.C. §§ 423(d)(1)(A).
reasons hereinafter expressed, the undersigned United States
Magistrate Judge recommends the Commissioner's decision
finding plaintiff not disabled and not entitled to benefits
be reversed and the case be remanded for further
8, 2012, plaintiff Kimberly Futrell protectively filed her
application for DIB due to blood clots, residual nerve damage
from complications of breast cancer, underactive thyroid and
asthma. (Administrative Transcript (Tr.) 12, 62, 64, 146,
157). The Commissioner denied benefits initially on October
10, 2012 and upon reconsideration on January 25, 2013. (Tr.
62-63, 64-65). Upon plaintiffs request, a video hearing was
held before an Administrative Law Judge (ALJ) on April 17,
2014. (Tr. 28-61). It was determined at the hearing that
plaintiffs actual disability onset date was May 23, 2012
instead of January 1, 2006. (Tr. 32). On the date of the
hearing, plaintiff was almost 46 years old, had a high school
education, twenty-two hours of college and two years of
management training for a supermarket chain. (Tr. 37, 64).
She had past relevant work as a school library aide and
merchandiser, both performed at the light, semiskilled level,
and as a retail manager, performed at the light, skilled
level. (Tr. 20). On June 18, 2014, the ALJ rendered an
unfavorable decision, finding plaintiff not disabled and not
entitled to benefits at any time relevant to the decision.
(Tr. 9). Following plaintiffs unsuccessful administrative
appeal of the ALJ's decision, plaintiff sought federal
reaching his decision, the ALJ followed the five-step
sequential process in 20 C.F.R. §§ 404.1520(a) and
416.920(a). The claimant has the initial burden of
establishing a disability in the first four steps in the
analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5,
107 S.Ct. 2287, 2294 n.5, 96 L.Ed.2d 119 (1987). At Step One,
the ALJ determined plaintiff had not engaged in substantial
gainful activity since her alleged onset date. (Tr.
At Step Two, the ALJ found plaintiffs left brachial plexus
neuropathy, left lower extremity deep vein thrombosis
(DVT) and obesity were severe impairments but
found her medically determinable mental impairments of
anxiety, panic attacks and depression to be non-severe. (Tr.
14-15). At Step Three, the ALJ concluded plaintiff did not
have an impairment or combination of impairments that meets
or medically equals one of the impairments listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 16). At Step
Four, the ALJ concluded plaintiff was capable of performing
her past relevant work. (Tr. 20).
reviewing disability determinations by the Commissioner, this
Court's role is limited to determining 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. It is more than a
mere scintilla and less than a preponderance." Boyd
v. 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 subjective 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, 707 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
found plaintiff not disabled at Step Four 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 perform her past relevant work,
and whether proper legal standards were applied in making
presents the following issues for review:
1. The ALJ erred in assessing the severity of plaintiff s
impairments at Step Two;
2. The RFC determination is unsupported by substantial
3. The credibility determination was not supported by
substantial evidence; and
4. The Step Four determination is not supported by
(Dkt. at 4).
Plaintiff's Impairments at Step Two
alleges the ALJ erred when he failed to find her medically
determinable mental impairments of anxiety, panic attacks and
depression to be severe and determined plaintiff had no
limitations in activities of daily living, social functioning
or concentration, persistence or pace. (Tr. 18 at 15).
Specifically, plaintiff argues the ALJ afforded no weight to
the opinion of plaintiffs treating psychologist, Dr. Steven
Schneider. (Dkt. 18 at 15). Plaintiff also argues the ALJ
failed to consider her testimony and the treatment notes in
the record to support her history of anxiety and depression.
record in this case contains a one-page letter from Dr.
Steven Schneider to plaintiffs counsel ...