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Carter v. Berryhill

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

July 5, 2017

JEFFREY CARTER, Plaintiff,
v.
NANCY A. BERRYHILL[1] Defendant.

          ORDER

          JEFFREY C. MANSKE UNITED STATES MAGISTRATE JUDGE.

         Jeffrey Carter, hereinafter “Plaintiff, ” seeks judicial review of a final decision by the Commissioner of the Social Security Administration (“Commissioner”) denying his claim for Disability and Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act.

         For the reasons set forth below, the undersigned finds that the final decision of the Commissioner be AFFIRMED.

         I. BACKGROUND

         A. Procedural History

         On November 20, 2012, Plaintiff filed his application for DIB claiming numerous impairments and a disability onset date of October 25, 2012. Tr. 20, 81. On November 8, 2012, Plaintiff's claim was initially denied and denied again upon reconsideration on August 6, 2013. Tr. 20. On August 12, 2013, Plaintiff timely filed a request for a hearing before an Administrative Law Judge (“ALJ”). Tr. 20. ALJ Malinda W. Kirkpatrick presided over the hearing in Waco, Texas on August 20, 2014. Id. On November 19, 2014, the ALJ upheld the Agency's denial of Plaintiff's claim. Tr. 1, 32. On May 20, 2016 the Appeals Council denied review of the ALJ's decision rendering the ALJ's decision the final decision of the Commissioner. Tr. 1. On July 14, 2017, Plaintiff timely brought an action seeking judicial review to the Waco Division of the United States District Court for the Western District of Texas. ECF No. 1-2.

         B. Factual History

         1. Age, Education, and Work Experience

         Plaintiff was born on June 2, 1956 and was 56 years old at the time of the ALJ's decision. Tr. 30. Plaintiff graduated high school and is able to communicate in English. Tr. 30. Plaintiff's past work experience includes military service and contract work as a field service technician, food service supervisor, cook helper, and supply clerk. Tr. 30-31.

         2. ALJ's Decision

         The ALJ decided two issues: (1) whether Plaintiff met the insured status requirements of S.S.A. §§ 216(i) and 223; and (2) whether Plaintiff was disabled under S.S.A. §§ 216(i) and 223(d). Tr. at 20. Id. First, the ALJ found that Plaintiff's disability insured status for purposes of Title II Disability Insurance Benefits eligibility extended to December 31, 2017.[2] Tr. 20. Second, the ALJ found that Plaintiff was not disabled from October 25, 2012 to the date of the ALJ's decision, November 19, 2014. Tr. 20, 32.

         In her decision, the ALJ determined Plaintiff's disability status by applying the five-step evaluation process found in 20 CFR 404.1520(a). Tr. 21-32. At Step 1, the ALJ found that Plaintiff had not engaged in substantial gainful activity from the alleged onset date, October 25, 2012. Tr. 22.

         At Step 2, the ALJ found that Plaintiff had multiple severe impairments. Id. The ALJ found Plaintiff's post-traumatic stress disorder (“PTSD”), major depressive disorder, obstructive sleep apnea, hypertension, gastroesophageal reflux disease, migraine headaches, diabetes mellitus, bilateral sensorineural hearing loss, bilateral hallux valgus post repair, and history of dependency all to be severe impairments. Id. The ALJ found at Step 3 that Plaintiff's impairments to that date did not meet or medically equal any of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1. Tr. 23-26.

         Prior to Step 4, the ALJ must determine Plaintiff's residual functional capacity (“RFC”). An RFC determination combines medical assessment with descriptions by physicians, the claimant, and others, of any limitations on the claimant's ability to work. Brown v. Barnhart, 372 F.Supp.2d 957, 974 (S.D. Tex. 2005); see Elzy v. Railroad Retirement Bd., 782 F.2d 1223, 1225 (5th Cir. 1986); see also 20 C.F.R. § 404.1545. When determining Plaintiff's RFC, the ALJ considered all symptoms to the extent they could be reasonably accepted as consistent with objective medical evidence in accordance with 20 CFR 404.1529, SSRs 96-4p and 96-7p. Id. The ALJ also considered medical, and other, opinion evidence in accordance with 20 CFR 404.1527 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p. Tr. 26-27. In doing so, the ALJ found that the claimant's medically determinable impairments could cause the claimant's alleged symptoms. Tr. 28.

         The ALJ found, however, that Plaintiff's statements regarding the severity, persistence, and limiting effects of the alleged symptoms were not entirely credible because they contradicted the medical evidence as a whole. Tr. 28-30. Thus, the ALJ determined Plaintiff had the residual capacity to:

perform medium work as defined in 20 CFR 404.1567(c) except stand or walk six out of eight hours, sit for six out of eight hours, no exposure to hazards, moving machinery, or unprotected heights, and he must avoid concentrated exposure to excessive noise levels.

Tr. 26.

         Relying on Plaintiff's RFC and the VE's testimony, the ALJ found at Step 4 that Plaintiff was unable to perform past relevant work as a field service technician, food service supervisor, cook helper, and supply clerk. Tr. 30. The vocational expert (“VE”)'s testimony is valuable in this regard, as the VE is “familiar with the specific requirements of a particular occupation, including working conditions and the attributes and skills needed.” Fields v. Bowen, 805 F.2d 1168, 1170 (5th Cir. 1986); accord Carey v. Apfel, 230 F.3d 131, 145 (5th Cir. 2000); see also Vaughan v. Shalala, 58 F.3d 129, 132 (5th Cir. 1995).

         When a claimant's RFC is not sufficient to continue his former work, the ALJ considers the claimant's age, education, and work experience in determining whether the claimant is capable of performing other work available in the national economy. See Boyd v. Apfel, 239 F.3d 698, 705 (5th Cir. 2001); 20 C.F.R. § 404.1520. At Step 5, the ALJ found that given Plaintiff's age, education, work experience, and RFC, Plaintiff was capable of performing other jobs in the national economy existing in significant numbers. Tr. 30-31. Accordingly, the ALJ found Plaintiff not disabled. Tr. 32. In the present case, Plaintiff asks the Court to reverse the Commissioner's final decision and remand the determination for rehearing. See Pl.'s Br. at 20.

         II. STANDARD OF REVIEW

         The scope of review is limited to the record, and the Court will neither conduct de novo review, make credibility determinations, nor re-weigh the evidence. Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983) (per curiam). Judicial review of the Commissioner's decision to deny a claimant disability benefits pursuant to 42 U.S.C. § 405(g) is limited to determining whether substantial evidence in the record exists to support the Commissioner's decision, and whether the ALJ followed relevant legal standards in evaluating the evidence. Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995) (per curiam).

         Substantial evidence is described as more than a scintilla, but less than a preponderance. Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992). It requires evidence that is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 400 (1971); Jones v. Heckler, 702 F.2d 616, 620 (5th Cir. 1983). Substantial evidence creates more than a mere suspicion that the fact to be established exists. Hames, 707 F.2d at 164. Finding the decision lacks substantial evidence is only proper when no credible medical findings or evidence support the determination. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).

         In determining whether substantial evidence of disability exists, a court will weigh: (1) objective medical facts or clinical findings; (2) diagnoses and opinions of treating and examining physicians; (3) Plaintiff's subjective evidence of pain and disability; and (4) the claimant's age, education, and work history. Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991) (per curiam) (citing DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972)). If the ALJ applied the proper principles of law, and if the Commissioner's decision is supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed, even if substantial evidence exists that would support an alternate finding. Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992); Martinez, 64 F.3d at 173 (citing Richardson, 402 U.S. at 390); Crowley v. Apfel, 197 F.3d 194, 197 (5th Cir. 1999).

         To reverse the Commissioner's decision, the court must find that the ALJ committed a reversible error, one affecting the claimant's substantial rights. See Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (per curiam) (“Remanding this case . . . would produce the same result while wasting time and resources.”); see also Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988) (holding that “procedural improprieties . . . constitute a basis for remand only if such improprieties would cast into doubt the existence of substantial evidence to support the ALJ's decision”). “Harmless error exists when it is inconceivable that a different administrative conclusion would have been reached absent the error.” Bornette v. Barnhart, 466 F.Supp.2d 811, 816 (E.D. Tex. 2006) (citing Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003)); see also Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (error is harmless unless there is reason to think that remand might lead to a different result). “The major policy underlying the harmless error rule is to preserve judgments and avoid waste of time.” Mays, 837 F.2d at 1364 (citing Gulf States Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 520 (5th Cir. 1981)).

         III. ...


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