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Herron v. Colvin

United States District Court, W.D. Texas, Austin Division

June 16, 2017

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.



         BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Plaintiff Brittany N. Herron's Brief on Review of the Denial of Benefits by the Commissioner of Social Security [#12], Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security Administration's Brief in Support of the Commissioner's Decision [#14], the Report and Recommendation of the United States Magistrate Judge [#15], and Plaintiffs Objections to the Report and Recommendation [#16]. Having reviewed the documents, the governing law, and the file as a whole, the Court now enters the following opinion and orders ACCEPTING the Report and Recommendation and AFFIRMING the judgment of the Commissioner.

         All matters in the case were referred to the Honorable Andrew W. Austin, United States Magistrate Judge, for report and recommendation (R&R) pursuant to 28 U.S.C. § 636(b) and Rule 1(h) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. The Magistrate Judge issued his R&R, finding the Commissioner's decision should be affirmed. Plaintiff is entitled to de novo review of the portions of the Magistrate Judge's report to which she filed specific objections. 28 U.S.C. § 636(b)(1). All other review is for plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc). Nevertheless, this Court has reviewed the entire file de novo, and agrees with the Magistrate Judge's recommendation.


         This is an appeal from a denial of child's disability benefits and supplemental security income (SSI). On May 18, 2012, Plaintiff Brittany N. Herron protectively filed applications for child's disability benefits and SSI. Social Security Tr. (Tr.) [#9] at 289-99. In her applications, Plaintiff alleged she has been disabled since January 1, 2003, due to endometriosis, fainting, seizures, inflamed lungs, and PTSD. Id. at 346. The Commissioner denied Plaintiffs applications and her request for reconsideration. Id. at 159-183.

         Plaintiff then requested a hearing on the Commissioner's denial before an Administrative Law Judge (ALJ), which was held on May 30, 2014. Id. at 32-51. Plaintiff, medical expert Thomas McKnight, Jr., Ph.D (ME), and vocational expert Thomas Paulson (VE) testified at the hearing. During the hearing, Plaintiff amended her alleged disability onset date from January 1, 2003, to March 1, 2012, the date she last worked full time.[1] Id. at 43-44. At the end of the hearing, the ALJ ordered that Plaintiff undergo a consultative mental examination. Id. at 76. On June 12, 2014, Gerald Gardner, Ph.D., completed the exam. Id. at 939-51.

         On September 24, 2014, the ALJ denied Plaintiffs application, id. at 9-32, and the Appeals Council declined Plaintiffs request for review on February 1, 2016. Id. at 1-6. Plaintiff has exhausted her administrative remedies and now seeks judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).


         I. Standard of Review

         Judicial review of the ALJ's decision is limited. Specifically, this Court reviews: (1) whether the ALJ's decision was supported by substantial evidence; and (2) if so, whether the ALJ made any errors of law in evaluating the evidence. Austin v. Shalala, 994 F.2d 1170, 1174 (5th Cir. 1993). Procedurally, the administrative process need not have been perfect, and this Court "will not vacate a judgment unless the substantial rights of a party have been affected." Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988). Procedural errors are therefore a basis for remand only if they "would cast into doubt the existence of substantial evidence to support the ALJ's decision." Morris v. Bowen, 864 F.2d 333, 334 (5th Cir. 1988).

         Substantial evidence "means more than a scintilla, but less than a preponderance, " Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988), and is "evidence that a reasonable mind would accept as adequate to support the decision." Morris, 864 F.2d at 334. In making these determinations, the Court must "carefully scrutinize the record" to determine if there is substantial evidence to support the ALJ's conclusions, but the Court can neither re-weigh the evidence nor substitute its judgment for that of the ALJ. Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988). If the Court finds substantial evidence to support the decision, the Court must uphold the decision. See Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The Court considers four elements of proof when determining whether there is substantial evidence of a disability: (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 history. Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995).

         The Social Security Act defines "disability" as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . 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). To determine if a claimant is able to engage in "substantial gainful activity" (and therefore if he is disabled), the Commissioner follows a five-step process:

1. The hearing officer must first ascertain whether the claimant is engaged in substantial gainful activity. A claimant who is working is not disabled regardless of the medical findings.
2. The hearing officer must then determine whether the claimed impairment is "severe." A "severe impairment" must significantly limit the claimant's physical or mental ability to do basic work activities. This determination must be made solely on the basis of the medical evidence.
3. The hearing officer must then determine if the impairment equals or exceeds in severity certain impairments described in Appendix 1 of the regulations. This determination is made using only medical evidence.
4. If the claimant has a "severe impairment" covered by the regulations, the hearing officer must determine whether the claimant can perform his past work despite any limitations.
5. If the claimant does not have the residual functional capacity[2] to perform past work, the hearing officer must decide whether the claimant can perform any other gainful and substantial work in the economy. This determination is made on the basis of the claimant's age, education, work experience, and residual functional capacity.

See Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); 20 C.F.R. § 404.1520.

         A finding of disability or no disability at any step is conclusive and terminates the analysis. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). The claimant has the burden of proof for the first four steps. Selders, 914 F.2d at 618. At step five, the burden initially shifts to the Commissioner to identify other work the applicant is capable of performing. Id. If the Commissioner "fulfills his burden of pointing out potential alternative employment, the burden then shifts back to the claimant to prove that he is unable to perform the alternate work." Id. (internal quotation marks and citation omitted).

         II. The ALJ's Opinion

         The ALJ determined Plaintiff has the following impairments: thrombocytopenia; possible endometriosis; depressive disorder, not otherwise specified; anxiety disorder, not otherwise specified, with panic symptoms; PTSD; and borderline intellectual functioning. Tr. at 15. Proceeding through the five-step analysis, the ALJ found as follows. First, Plaintiff is not engaged in substantial gainful activity, although since March 1, 2012, she "has essentially worked full-time for her sister providing daily childcare for her three-year old niece and eight-month old nephew." Id. at 14-15. Second, Plaintiffs impairments are "severe because the impairments have been diagnosed by acceptable medical sources and they cause more than a minimal effect on [Plaintiffs] ability to perform basic, work-related activities." Id. at 15-16. Third, none of Plaintiff s impairments, either alone or in combination, meet or medically equal any of the impairments listed in Appendix 1 of the regulations. Id. at 16-18. Fourth, Plaintiff is unable to perform her past relevant work as a telemarketer. Id. at 23.

         Turning to the fifth factor, the ALJ determined that despite Plaintiffs inability to perform her past job, there are jobs in the national economy which Plaintiff would presently be able to perform, such as a laundry folder, housekeeping cleaner, or small part assembler. Id. at 23-24. The ALJ found Plaintiffs "reported activities of daily living show that she is able to perform many tasks including daily childcare which are tasks that transfer well to a work setting." Id. at 20. ...

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