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Trevino v. Berryhill

United States District Court, N.D. Texas, Amarillo Division

March 2, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff KRISSIE MAE TREVINO brings this cause of action pursuant to 42 U.S.C. § 405(g) seeking review of a final decision of defendant NANCY A. BERRYHILL, Acting Commissioner of Social Security (Commissioner), denying plaintiff's applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). Both parties have filed briefs in this cause. For the reasons hereinafter expressed, the undersigned United States Magistrate Judge recommends the Commissioner's decision finding plaintiff not disabled and not entitled to benefits be REVERSED and the case be remanded for further administrative proceedings.



         On March 6, 2013, plaintiff Krissie Mae Trevino protectively filed her applications for social security disability benefits initially raising complaints of deteriorating disc and arthritis in back, degenerative disc disease and rheumatoid arthritis. (Administrative Transcript (Tr.) 59; 64).[1] The Commissioner denied benefits initially on April 19, 2013 and upon reconsideration on June 27, 2013. (Tr. 86-91; 96-99). Upon plaintiff's request, a video hearing was held before an Administrative Law Judge (ALJ) on August 5, 2015. (Tr. 40-55). At the hearing, through her representative, plaintiff amended her disability onset date to reflect the date May 7, 2013 instead of May 1, 2010. (Tr. 43). On the date of the hearing, plaintiff was 32 years old and had received her General Equivalency Diploma (GED). (Tr. 43; 52). Plaintiff had past relevant work as: a caregiver, performed at the medium, semiskilled level; and as a property manager, performed at the light, skilled level. (Tr. 31; 52). On September 10, 2015, the ALJ rendered an unfavorable decision, finding plaintiff not disabled and not entitled to benefits at any time relevant to the decision. (Tr. 20-33). Following plaintiff's unsuccessful administrative appeal of the ALJ's decision, plaintiff sought federal judicial review.

         In reaching her decision, the ALJ followed the five-step sequential process in 20 C.F.R. § 404.1520(a) and 416.920(a). The claimant has the initial burden of establishing a disability in the first four steps in the analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294 n.5, 96 L.Ed.2d 119 (1987). At Step One, the ALJ determined plaintiff had not engaged in substantial gainful activity since her alleged onset date. (Tr. 25). At Step Two, the ALJ found plaintiff's chronic back pain secondary to degenerative disc disease of the lumbar, cervical, and thoracic spinal regions with lumbar and cervical radiculopathy/radiculitis were severe impairments but found her migraine headaches to be non-severe. (Tr. 25; 27). At Step Three, the ALJ concluded plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 28).

         After an extensive review of the medical record, the ALJ determined plaintiff was not entirely credible regarding her impairments and their impact on her ability to work. (Tr. 31). In so finding, the ALJ next evaluated plaintiff's RFC, reaching the conclusion plaintiff was able “[t]o perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that requiring more than occasionally stopping (sic), crouching and kneeling.” (Tr. 28). The ALJ's decision references light work and appears to indicate plaintiff was capable of performing more than occasional stooping, crouching and kneeling; however, a review of the hypothetical posed to the Vocational Expert (VE) at the administrative hearing clarifies she referenced a hypothetical claimant possessing the strength to “[p]erform a wide range of light work with only occasional stooping, kneeling, and crouching.” (Tr. 53).[2]

         The ALJ next found, at Step Four, that plaintiff could return to her past relevant work as a Property Manager, a job the ALJ classified as light, skilled and not requiring the performance of work-related activities precluded by plaintiff's RFC. (Tr. 31). Alternatively, at Step Five, based on the RFC determination and VE testimony, the ALJ found plaintiff was capable of performing other jobs existing in significant numbers in the national economy including Cashier II, Arcade Attendant, and Parking Lot Attendant. (Tr. 32-33). The ALJ found plaintiff was not under a disability at any time between May 7, 2013, the amended alleged onset date, and September 10, 2015, the date of the ALJ decision. (Tr. 33).



         Courts have adopted what amounts to a “harmless error” standard of review regarding matters of administrative procedure in Social Security cases. Courts will order remand in cases with procedural error if the substantial rights of a party have been affected ... but “procedural improprieties ... will ... constitute a basis for remand only if such improprieties would cast into doubt the existence of substantial evidence to support the ALJ's decision." Morris v. Bowen, 864 F.2d 333, 335 (5th Cir.1988).



         The ALJ in this case made the determination plaintiff is not disabled at Step Five of the five-step sequential analysis. See 20 C.F.R. § 404.1520(a)(4). Therefore, this Court is limited to reviewing only whether there was substantial evidence in the record as a whole supporting a finding that plaintiff retained the ability to perform work that exists in significant numbers in the national economy, and whether the proper legal standards were applied in reaching this decision.

         To that extent, plaintiff raises only claims that the ALJ failed to properly:

         1. Weigh the medical evidence of record and determine plaintiff's RFC; and

         2. Evaluate plaintiff's credibility. (ECF 10 at 2).



         Plaintiff first alleges the ALJ failed to give proper weight to the opinions of treating physician, Dr. Thomas Darter and treating neurosurgeon, Dr. Sanjoy Sundaresan. Plaintiff included in her brief a recitation of her limited contact with treating pain management specialist, Dr. Miles Day, as does the Court; however, she does not argue Dr. Day's opinion was given insufficient weight or is relevant to the issues addressed herein.[3]

         A. Treating Physician - Dr. ...

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