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Dunn v. Berryhill

United States District Court, W.D. Texas, El Paso Division

June 30, 2017

KERRY VIGIL DUNN, JR., Plaintiff
v.
NANCY A. BERRYHILL, [1] ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION Defendant

          MEMORANDUM OPINION AND ORDER

          MIGUEL A. TORRES UNITED STATES MAGISTRATE JUDGE

         This is a civil action seeking judicial review of an administrative decision pursuant to 42 U.S.C. § 405(g). Plaintiff Kerry Vigil Dunn, Jr. ("Dunn"), appeals from the decision of the Commissioner of the Social Security Administration ("Commissioner") denying his claims for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("the Act") and Supplemental Security Income ("SSI") under Title XVI of the Act. The parties consented to the transfer of the case to this Court for determination and entry of judgment. See 28 U.S.C. § 636(c); Local Court Rule CV-72. For the reasons set forth below, the Commissioner's decision will be AFFIRMED.

         I. PROCEDURAL HISTORY

         Dunn's past work was to mark material in preparation for sewing for Ready One Industries, a position he held from February 2008 until February 2010. (R. 35, 170).[2] He was twenty-eight years old at the time of his hearing before the Administrative Law Judge ("ALJ") in 2013. (R. 119). Dunn filed applications for DIB and SSI on October 13, 2010, in which he alleged disability beginning July 10, 1984, [3] due to cerebral palsy and dyslexia.[4] (R. 119-31, 164). After his applications were denied initially and upon reconsideration, Dunn requested a hearing. (R. 55-60, 63, 66-74). On March 19, 2013, he appeared with his attorney for a hearing before the ALJ. (R. 30-48). On May 1, 2013, the ALJ issued a written decision denying benefits on the ground that Dunn was capable of performing work that exists in significant numbers in the national economy. (R. 14-24). On June 26, 2014, the Appeals Council denied Dunn's request for review, thereby making the ALJ's decision the Commissioner's final administrative decision. (R. 4-9). Dunn argues that the ALJ's residual functional capacity ("RFC") determination is not supported by substantial evidence.

         II. DISCUSSION

         A. Standard of Review

         This Court's review is limited to a determination of whether the Commissioner's final decision is supported by substantial evidence on the record as a whole and whether the Commissioner applied the proper legal standards in evaluating the evidence. Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001) (quoting Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994)). Substantial evidence is more than a scintilla, but less than a preponderance, and is such relevant evidence as a reasonable mind might accept to support a conclusion. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). A finding of "no substantial evidence" will be made only where there is a "conspicuous absence of credible choices" or "no contrary medical evidence." Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988).

         In determining whether there is substantial evidence to support the findings of the Commissioner, the Court must carefully examine the entire record, but may not reweigh the evidence or try the issues de novo. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). The Court may not substitute its own judgment "even if the evidence preponderates against the [Commissioner's] decision" because substantial evidence is less than a preponderance. Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988). Conflicts in the evidence are for the Commissioner and not the courts to resolve. Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). If the Commissioner applied the proper legal standards and her findings are supported by substantial evidence, they are conclusive and must be affirmed. Id.

         Disability is defined as the "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). Disability claims are evaluated according to a five-step sequential process: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe medically determinable physical or mental impairment or combination of impairments; (3) whether the claimant's impairment or combination of impairments meets or equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) whether the impairment or combination of impairments prevents the claimant from performing past relevant work; and, (5) whether the impairment or combination of impairments prevents the claimant from doing any other work. 20 C.F.R. § 404.1520. A finding that a claimant is disabled or not disabled at any point in the process is conclusive and terminates the analysis. Greenspan, 38 F.3d at 236.

         The claimant bears the burden of proof on the first four steps of the sequential analysis. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). Once this burden is met, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that the claimant is capable of performing. Anderson v. Sullivan, 887 F.2d 630, 632 (5th Cir. 1989). The Commissioner may meet this burden by the use of opinion testimony of vocational experts or by use of administrative guidelines in the form of regulations. Rivers v. Schweiker, 684 F.2d 1144, 1155 (5th Cir. 1982). If the Commissioner adequately points to potential alternative employment, the burden then shifts back to the claimant to prove that he is unable to perform the alternative work. Fruge v. Harris, 631 F.2d 1244, 1246 (5th Cir. 1980) (citations omitted).

         B. RFC is Supported by Substantial Evidence

         RFC is defined as the most an individual can still do despite his limitations. 20 C.F.R. §§ 404.1545, 416.945. The responsibility to determine the claimant's RFC belongs to the ALJ. Ripley, 67 F.3d at 557. In making this determination, the ALJ must consider all the record evidence and determine Plaintiffs abilities despite any physical and mental limitations. 20 C.F.R. §§ 404.1545, 416.945. The ALJ must consider the limiting effects of Plaintiffs impairments, even those that are non-severe, and any related symptoms. See 20 C.F.R. §§ 404.1545, 416.945, 404.1529, 416.929. However, a claimant's own subjective complaints, without supporting objective medical evidence, are insufficient to establish disability. See 20 C.F.R. §§ 404.1508, 416.908, 404.1528, 416.928, 404.1529, 416.929. The ALJ is not required to incorporate limitations in the RFC that he did not find to be supported in the record. See Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988).

         The ALJ found that Dunn had the RFC to perform light work[5] except he was: (1) limited to frequent but not constant fingering; and (2) limited to simple routine tasks with reasoning level l.[6] (R. 18). Dunn argues that the ALJ failed to properly accommodate all limitations resulting from his mental impairments, and thus the ALJ's RFC finding is inconsistent with the evidence of the record. (ECF No. 22, at 4). According to Dunn, these limitations arise from several conditions, including ADHD, a learning disability, borderline intellectual functioning, and mental retardation. (ECF No. 22, at 4). Specifically, Dunn asserts these conditions affect his ability to: (1) attend and complete tasks; (2) acquire and use information; (3) function socially. (ECF No. 22, at 9). In support of this argument, the plaintiffs brief discusses his medical history in a single paragraph that runs five pages, with limited substantive analysis. (ECF No. 22, at 4-8).

         Despite Dunn's severe mental impairments, including borderline intellectual functioning, a learning disorder, and anxiety, and his ADHD diagnosis, there is substantial evidence in the record to support the ALJ's RFC determination. In 2005, Dunn underwent a psychological consultative examination conducted by James W. Schutte, PhD. (R. 318-22). Dunn reported that he was capable of relating to others appropriately, and that he had friends. (R. 321). Dr. Schutte indicated that Dunn could follow simple storylines and simple instructions, and that he could carry out simple tasks. (R. 321). Dr. Schutte also noted that Dunn's cognitive functions, and specifically his attention ...


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