United States District Court, W.D. Texas, Austin Division
MEMORANDUM OPINION AND ORDER
W. AUSTIN, UNITED STATES MAGISTRATE JUDGE.
the Court are Plaintiff's Brief (Dkt. No. 11);
Defendant's Brief (Dkt. No. 12); and Plaintiff's
Reply (Dkt No. 13). Also before the Court is the Social
Security record filed in this case (Cited as
Anita Gail Spano brings this appeal challenging the final
decision denying her disability benefits. Spano has a high
school education and completed secretarial school in 1979.
(Tr. 175). Her past work includes work in a pet boarding
facility, performing data entry in a warehouse, and working
for a home-building company. Id. Spano filed an
application for Disability Insurance Benefits on August 12,
2013, alleging disability due to depression, fibromyalgia,
rheumatoid arthritis, chronic fatigue syndrome, Sjogren's
disease, and Raynaud's syndrome. (Tr. 174). This
application was denied initially on October 14, 2013, and was
denied on reconsideration on January 8, 2014. (Tr. 74, 82).
After a hearing, ALJ James Bentley denied the application on
September 9, 2015. (Tr. 11-21).
Decision, the ALJ found Spano last met the insured status
requirements of the Social Security Act on March 31, 2012.
(Tr. 13). He found Spano did not engage in substantial
gainful activity during the period between her alleged onset
date of December 17, 2005, and the date she was last insured,
March 31, 2012. (Tr. 13). The ALJ found that, through the
date last insured, Spano suffered from severe impairments of
depression, osteoarthritis, and fibromyalgia. (Tr. 13). He
also found that, through the date last insured, Spano did not
have an impairment or combination of impairments that met or
medically equaled the severity of a listed impairment. (Tr.
14). The ALJ determined that Spano was unable to perform her
past relevant work, but that there were jobs that existed in
significant numbers in the national economy that Plaintiff
could perform, and she was therefore not disabled. (Tr.
19-20). The Appeals Council denied review on October 18,
2016, making the ALJ's decision the final Agency
decision, which Spano now appeals.
Social Security Act defines “disability” as an
“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). To determine if
a claimant is disabled the Commissioner uses a five-step
1. a claimant who is working, engaging in a substantial
gainful activity, will not be found to be disabled no matter
what the medical findings are;
2. a claimant will not be found to be disabled unless he has
a “severe impairment”;
3. a claimant whose impairment meets or is equivalent to an
impairment listed in Appendix 1 of the regulations will be
considered disabled without the need to consider vocational
4. a claimant who is capable of performing work that he has
done in the past must be found “not disabled”;
5. if the claimant is unable to perform his previous work as
a result of his impairment, then factors such as his age,
education, past work experience, and residual functional
capacity must be considered to determine whether he can do
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir.
1994); see also 20 C.F.R. § 404.1520. A finding
of disability or no disability at any step “is
conclusive and terminates the analysis.” Lovelace
v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987). The claimant
has the burden of proof for the first four steps; however, at
step five, the burden initially shifts to the Commissioner to
identify other work the applicant is capable of performing.
Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir.
1990). If the Commissioner “fulfills his burden of
pointing out potential alternative employment, the burden
then shifts back to the claimant to prove that he is unable
to perform the alternate work.” Id. (internal
quotation marks omitted).
review of the Commissioner's final decision under the
Social Security Act, 42 U.S.C. § 405(g), is limited to
two inquiries: (1) whether substantial evidence supports the
Commissioner's decision, and (2) whether the Commissioner
applied the correct legal standards. Kinash v.
Callahan, 129 F.3d 736, 738 (5th Cir. 1997). Substantial
evidence is more than a scintilla of evidence but less than a
preponderance-in other words, “such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” Martinez v. Chater, 64 F.3d 172,
173 (5th Cir. 1995) (internal quotation marks omitted). The
Court considers “four elements of proof when
determining whether there is 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) [the claimant's] age, education, and work
history.” Id. at 174. However, a reviewing
court “may not reweigh the evidence, try the issues
de novo, or substitute [its] judgment for that of
the [Commissioner].” Greenspan v. Shalala, 38