United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER GRANTING PLAINTIFF'S MOTION
FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR
FRANCES H. STACY UNITED STATES MAGISTRATE JUDGE.
the Court in this social security appeal is
Defendant's Cross Motion for Summary Judgment (Document
No. 12) and Brief in Support (Document no. 13), as well as
Plaintiffs Motion for Summary Judgment (Document No. 14) and
Brief in Support (Document No. 15). After considering the
cross motions for summary judgment, Defendant's Response
to Plaintiffs Motion for Summary Judgement (Document No. 16),
the administrative record, the written decision of the
Administrative Law Judge dated September 26, 2014, and the
applicable law, the Court ORDERS, for the reasons set forth
below, that Plaintiffs Motion for Summary Judgment is
GRANTED, Defendant's Motion for Summary Judgment is
DENIED, and this case is REMANDED pursuant to 42 U.S.C.
§ 405(g) for further development of the administrative
record and subsequent proceedings.
Shaikh Masood ("Masood") brings this action
pursuant to Section 205(g) of the Social Security Act
("Act"), 42 U.S.C. § 405(g), seeking judicial
review of the adverse final decision by the Commissioner of
the Social Security Administration ("Commissioner")
on his claim for disability insurance benefits. In his
appeal, Masood argues that: (1) "The Appeals
Council's finding that new evidence submitted to it was
not new and material evidence, is contrary to the law:"
(2) "The Agency failed to consider the opinion evidence
of Dr. Adnan Rafiq in accordance with Agency policy,
regulations, and Fifth Circuit Precedent, thereby dismissing
the account of the greater limitations established by Dr.
Rafiq;" (3) "The Administrative Law Judge
("ALJ") erred by failing to account for Plaintiffs
left shoulder impairment and hearing loss in the Residual
Function Capacity ("RFC") determination:" (4)
"The ALJ erred by failing to develop the record with
regard to Plaintiffs mental impairments:" and (5)
"The ALJ erred when he failed to adhere to unambiguous
Agency policy requiring review of the record by a qualified
psychologist in cases involving mental impairment."
Plaintiffs Motion for Summary Judgment (Document No. 15) at
4, 9, 11, 14, 18 and 20. The Commissioner, in contrast,
argues that there is substantial evidence in the record to
support the ALJ's decision, that the decision comports
with the applicable law, that the ALJ had no duty to further
develop the record beyond what had been established, and that
the decision should be affirmed.
filed an application for Title II disability insurance
benefits on March 7, 2013, claiming that he has been disabled
since December 21, 2010, as a result of hearing problems,
arthritis, back problems, memory loss, neck injury, and an
immobile right hand (Tr. 126, 193-94, 233). The Commissioner
denied the application initially, and on reconsideration.
Masood's subsequent request for a hearing before the ALJ
was granted, and a hearing was held before the ALJ, Allen G.
Erickson, on May 8, 2014, at which plaintiffs claims were
considered de novo (Tr. 39-100). After the hearing
and upon consideration of the medical records provided and
the testimony of a vocational expert, the ALJ issued an
unfavorable decision denying Masood's claim for
disability benefits (Tr. 126-133).
sought review of the unfavorable decision with the Appeals
Council. The Appeals Council will grant a request for review
of an ALJ's decision if: (1) the ALJ appears to have
abused his or her discretion; (2) there is an error of law;
(3) the decision is not supported by substantial evidence;
(4) there is a broad policy or procedural issue that may
affect the public interest; (4) new and material evidence is
received and the decision is contrary to the weight of all
the evidence now in the record, including this new and
material evidence. 20 C.F.R. § 416.1470. The Appeals
Council denied Masood's request for review on March 2,
2016 (Tr. 22-24), stating therein that the new evidence
Masood provided as the basis for review was not new evidence,
but copies of Exhibit 4F and 1 OF within the record (Tr. 23).
As such, the Appeals Council affirmed the decision by the
ALJ, thereby making the ALJ's decision final (Tr. 23).
has filed a timely appeal of the ALJ's decision. 42 U.S.C
§ 405(g). The parties have filed cross motions for
summary judgment (Document Nos. 12 & 14). The appeal is
now ripe for ruling.
Standard of Review of Agency Decision
to 42 U.S.C § 405(g), a review of the final decision by
the Social Security Administration is limited "to
determining (1) whether substantial evidence supports the
Commissioner's decision, and (2) whether the
Commissioner's decision comports with the relevant legal
standards." Jones v. Apfel, 174 F.3d 692, 693
(5th Cir. 1999). If the findings by the Commissioner are
supported by substantial evidence, then these findings
"are conclusive and the Commissioner's decision must
be affirmed." Martinez v. Chater, 64 F.3d 172,
173 (5th Cir. 1995). The Act grants the district courts the
power to enter judgement, upon the pleadings and transcript,
"affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding
the case for a rehearing" when not supported by
substantial evidence. 42 U.S.C. § 405(g). We weigh four
elements of proof when determining whether there is a
substantial evidence of 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) his age, education
and work history." Wren v. Sullivan, 925 F.2d
123, 126 (5th Cir. 1991). Though the court has a duty to
examine the record fully when rendering a decision, it is not
within the court's discretion to "reweigh the
evidence in the record nor try the issues de novo, nor
substitute [its] judgement for that of the [Commissioner]
even if the evidence preponderates against the
[Commissioner's] decision." Johnson v.
Bowen, 864 F.2d 340, 343 (5 Cir. 1988). The term
"substantial evidence, " as used within the Act,
has been defined by the United States Supreme Court to be
"such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consolidated Edison Co. v. N.L.R.B., 305
U.S. 197, 229 (1938). Substantial evidence is "more than
a scintilla, less than a preponderance." Hames
v Heckler, 707 F.2d 162, 164 (5th Cir. 1983).
Furthermore, such evidence creates more than "a
suspicion of the existence of the fact to be established, but
no 'substantial evidence' will be found where there
is a 'conspicuous absence of credible choices' or
'no contrary medical evidence.'" Id.
Burden of Proof
entitled to disability insurance benefits, the claimant must
establish that he or she is disabled. As defined by the Act,
a person is disabled when he or she is unable to "engage
in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which
can be expect to.. .last for a continuous period of not less
than twelve months." 42 U.S.C § 423(d)(1)(A).
disability determination is accomplished by the ALJ through
administering a five-step procedure as mandated by the Social
Security Act. The rules governing this evaluation process are
illustrated cogently in Crowley v. Apfel, 197 F.3d
194 (5th Cir. 1999):
First, the claimant must not be presently working at any
substantial gainful activity. Second, the claimant must have
an impairment or combination of impairments that are severe.
An impairment or combination of impairments is
"severe" if it "significantly limits [a
claimant's] physical or mental ability to do basic work
activities." Third, the claimant's impairment must
meet or equal an impairment listed in the appendix to the
regulations. Fourth, the impairment must prevent the claimant
from returning to his past relevant work. Fifth, the
impairment must prevent the claimant from doing any relevant
work, considering the claimant's residual functional
capacity, age, education, and past work experience. At steps
one through four, the burden of proof rests upon the claimant
to show he is disabled. If the claimant acquits this
responsibility, at step five the burden shifts to the
Commissioner to show that there is ...