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Trego v. Berryhill

United States District Court, N.D. Texas, Fort Worth Division

August 2, 2017




         The 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.

         I. BACKGROUND

         This 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.

         On 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.


         Judicial 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).

         The 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).

         The 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 id.

         III. ANALYSIS

         The Court considers each of Plaintiff's objections in turn.

         A. The ALJ Considered the Effects of Plaintiff's Fibromyalgia

         Plaintiff 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.

         Plaintiff 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 ...

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