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Futrell v. Berryhill

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

March 16, 2017

KIMBERLY FUTRELL, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION TO REVERSE THE DECISION OF THE COMMISSIONER AND REMAND

          CLINTON E. AVERITTE UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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).

         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 reversed and the case be remanded for further administrative proceedings.

         I.

         PROCEEDINGS

         On June 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 judicial review.

         In 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. 14).[1] At Step Two, the ALJ found plaintiffs left brachial plexus neuropathy, left lower extremity deep vein thrombosis (DVT)[2] 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).

         II.

         STANDARD OF REVIEW

         In 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 ALJ's decision.

         III.

         ISSUES

         The ALJ 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 this determination.

         Plaintiff 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 evidence;
3. The credibility determination was not supported by substantial evidence; and
4. The Step Four determination is not supported by substantial evidence.

(Dkt. at 4).

         IV.

         MERITS

         A. Plaintiff's Impairments at Step Two

         Plaintiff 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. (Id.).

         The record in this case contains a one-page letter from Dr. Steven Schneider to plaintiffs counsel ...


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