United States District Court, N.D. Texas, Fort Worth Division
O'CONNOR UNITED STATES DISTRICT JUDGE.
United States Magistrate Judge issued a Report and
Recommendation (“R&R”) (ECF No. 22) in this
case. The Magistrate Judge recommended that the decision of
the Commissioner of Social Security be affirmed and the
complaint be dismissed with prejudice. Plaintiff Julie Ann
Trego filed objections. See Pl.'s Obj., ECF No.
23. The Court has conducted a de novo review of those
portions of the proposed findings and conclusions to which an
objection was made. Having reviewed the objections, the
applicable law, and the record, the Court finds the R&R
in this case should be and is hereby ADOPTED.
factual recitation is taken from the R&R in this case.
R&R 1-3, ECF No. 22. Trego filed applications for
disability insurance benefits and supplemental security
income on May 20, 2010. Those applications were denied
initially on October 28, 2010 and after reconsideration on
March 1, 2011. Plaintiff requested a hearing, which was held
before an Administrative Law Judge on April 3, 2012. The ALJ
issued a decision on June 19, 2012, finding Plaintiff was not
disabled. Plaintiff applied to the Appeals Council for
review, and her claim was remanded for further consideration
on November 13, 2013. An ALJ held a second hearing on April
7, 2014, and issued a decision on July 22, 2014, again
determining Plaintiff was not disabled. Plaintiff applied to
the Appeals Council, which denied review on January 7, 2015.
Therefore, the second ALJ's decision is the
Commissioner's final decision and properly before the
Court for review.
April 4, 2017, the Magistrate Judge issued its R&R
recommending that the Commissioner's decision be affirmed
and Plaintiff's case dismissed. Plaintiff now objects,
arguing the Magistrate Judge erred in finding: (1) the ALJ
considered the effects of Plaintiff's fibromyalgia; (2)
the ALJ properly evaluated the opinions of her treating
psychiatrist, nurse practitioner, and consultative examining
physician; and (3) the ALJ complied with 20 C.F.R. §
404.1529 in evaluating Plaintiff's symptoms. Pl.'s
Obj., ECF No. 23. The Court now considers de novo those
portions of the R&R to which Trego objects.
review of the Commissioner's denial of benefits is
limited to whether the Commissioner's position is
supported by substantial evidence and whether the
Commissioner applied proper legal standards in evaluating the
evidence. Greenspan v. Shalala, 38 F.3d 232, 236
(5th Cir. 1994); 42 U.S.C. §§ 405(g), 1383(c)(3).
In applying the substantial evidence standard, the reviewing
court does not re-weigh the evidence, retry the issues, or
substitute its own judgment, but rather, scrutinizes the
record to determine whether substantial evidence is present.
Greenspan, 38 F.3d at 236. “The Commissioner,
not the court, has the duty to weigh the evidence, resolve
material conflicts in the evidence, and make credibility
choices.” Carrier v. Sullivan, 944 F.2d 105,
109 (5th Cir. 1991).
Social Security Administration uses a five-step process to
determine whether an individual is disabled. See 20
C.F.R. § 404.1520(a)(4). The steps are followed in
order, and if at any step the Commissioner determines that
the claimant is disabled or not disabled, the evaluation does
not go on to the next step. Id. The five steps
consider: (1) whether the claimant is engaged in substantial
gainful activity; (2) the medical severity of the
claimant's impairments; (3) whether the claimant's
medical impairment or combination of impairments meets or
medically equals the criteria listed in the Listing of
Impairments; (4) the claimant's residual functional
capacity and past relevant work; and (5) whether the
combination of the claimant's residual functional
capacity, age, education, and work experience allow for
adjustments to be made to permit the claimant to work.
See Id. If the impairment is severe but does not
meet or equal a listed mental impairment, then the
Commissioner must conduct a residual functional capacity
assessment. Id.; § 404.1520a(d)(3).
scope of judicial review of a decision under the supplemental
security income program is identical to that of a decision
under the social security disability program. Davis v.
Heckler, 759 F.2d 432, 435 (5th Cir. 1985). Moreover,
the relevant law and regulations governing the determination
of disability under a claim for disability insurance benefits
are identical to those governing the determination under a
claim for supplemental security income. See Id.
Thus, the Court may rely on decisions in both areas without
distinction in reviewing an ALJ's decision. See
Court considers each of Plaintiff's objections in turn.
ALJ Considered the Effects of Plaintiff's Fibromyalgia
argues that, while Defendant implicitly conceded that the ALJ
erroneously found Plaintiff did not have the medically
determinable impairment of fibromyalgia, the Magistrate Judge
incorrectly concluded that such error was harmless. Pl.'s
Obj. 1-2, ECF No. 23. She contends there is no indication the
ALJ considered Plaintiff's fatigue, caused by her
fibromyalgia, and this legal error requires remand.
Id. Having reviewed the record de novo, the Court
concludes that any alleged error in failing to determine that
Plaintiff has the medically determinable impairment of
fibromyalgia was harmless.
is correct that the ALJ does not specifically discuss
Plaintiff's fatigue; however, the record makes clear that
the ALJ considered all of Plaintiff's subjective
complaints alongside the remainder of the evidence and
determined that the evidence from other medical sources was
more credible regarding Plaintiff's capacity to work.
ALJ's Decision 34, ECF No. 16-3. Plaintiff has not shown
that had the ALJ determined that fibromyalgia was a medically
determinable impairment, the ALJ would have given greater
weight to Plaintiff's subjective complaints of fatigue
and found a more restrictive RFC. See Mays v. Bowen,
837 F.2d 1362, 1364 ...