United States District Court, N.D. Texas, Abilene Division
REPORT AND RECOMMENDATION
SCOTT FROST UNITED STATES MAGISTRATE JUDGE.
to 42 U.S.C. § 405(g), Plaintiff/Claimant seeks judicial
review of a decision of the Commissioner of Social Security
("Commissioner") denying her application for
Disability Insurance Benefits ("DIB") under Title
II of the Social Security Act and Supplemental Security
Income ("SSI") under Title XVI of the
See Compl. (doc. 1). The Commissioner has filed an
answer, see Def.'s Answer (doc. 9), and a
certified copy of the transcript of the administrative
proceedings, see SSA Admin. R. [hereinafter
"R."] (doc. 11), including the hearing before the
Administrative Law Judge ("ALJ"). The parties have
briefed the issues. See Pl.'s Br. (doc. 13);
Def.'s Br. (doc. 15). The United States District Judge
referred the case to the undersigned pursuant to 28 U.S.C.
§ 636 and the parties have not consented to proceed
before a United States Magistrate Judge. After considering
the pleadings, briefs, and administrative record, the
undersigned recommends that the Court affirm the
filed applications for DIB and SSI in December 2013 alleging
disability beginning August 2, 2010. R. 155, 162. She claimed
to be disabled due to various physical impairments. R. 185.
Because Plaintiff had prior applications for benefits that
had been denied on July 31, 2012, the ALJ addressed "only
the issue of disability beginning August 1, 2012." R.
11. As calculated by the ALJ, her date of last insured
("DO") is December 31, 2015. See R. 13.
Therefore, the most relevant time period for her applications
and the Court's review commenced in August 2012 and
continued through December 2015.
Commissioner denied the applications initially and on
reconsideration. See R. 94, 106. On March 18, 2015,
Administrative Law Judge ("ALJ") Dan Dane held a
hearing on Plaintiffs claims. See R. 37-50. On June
17, 2015, the ALJ issued an unfavorable decision finding that
Plaintiff was not disabled and was capable of performing work
that existed in significant numbers in the national economy.
R. 11 -22. Applying the sequential, five-step analysis set
out in the regulations (20 C.F.R. § §
404.1520(a)(4), 416.920(a)(4)) the ALJ first determined that
Plaintiff had not engaged in substantial gainful activity
since the August 1, 2012, having not worked since 2010. R.
13. The ALJ next determined that Plaintiff suffers from the
following severe impairments: degenerative disc disease,
spondylosis, and radiculopathy of lumbar and cervical spine,
status post bilateral hemila-minotomy at ¶ 4-5 and
obesity. R. 13 -14. Third, the ALJ found that Plaintiff did
not have an impairment or combination of impairments that met
or equaled the severity of any impairment in the
listings. R. 14.
then determined that Plaintiff retained the residual
functional capacity ("RFC") to perform sedentary work as
defined in 20 C.F.R. §§ 404.1567(a),
416.967(a). See R. 14. The ALJ found that
Plaintiff could (1) lift/carry five pounds frequently and ten
pounds occasionally; (2) stand or walk up to two hours; and
(3) sit for up to six hours in an eight-hour workday.
Id. Based upon the RFC determination and testimony
from a vocational expert ("VE"), the ALJ concluded
that Plaintiff could not perform her past relevant work, but
could perform jobs that exist in significant numbers in the
national economy. R. 20-22. At Step 5 of the evaluative
sequence, the ALJ thus found that Plaintiff was not disabled
within the meaning of the Social Security Act between August
1, 2012, and the date of the ALJ's decision. See
Appeals Council received and considered an attorney brief
(Ex. 22E) when it denied review on August 2, 2016.
See R. 1-4. The ALJ's decision is the
Commissioner's final decision and is properly before the
Court for review. See Higginbotham v. Barnhart, 405
F.3d 332, 334 (5th Cir. 2005) (stating that the
Commissioner's final decision "includes the Appeals
Council's denial of [a claimant's] request for
commenced this social security appeal on September 28, 2016.
See Compl. She presents a single issue for review -
whether substantial evidence supports the ALJ's RFC
finding that she is capable of a full range of sedentary
work. See Pl.'s Br. at 1.
general,  a person is disabled within the meaning of
the Social Security Act, 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 expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than
twelve months." 42 U.S.C. §§ 423(d)(1)(A),
l382c(a)(3)(A). '"Substantial gainful activity'
is work activity involving significant physical or mental
abilities for pay or profit." Masterson v.
Barnhart, 309 F.3d 267, 271 n.2 (5th Cir. 2002) (citing
20 C.F.R. § 404.1572(a)-(b)); accord 20 C.F.R.
§ 4l6.972(a)-(b). To evaluate a disability claim, the
Commissioner employs the previously mentioned
five-step sequential analysis to determine whether (1) the
claimant is presently working; (2) the claimant has a severe
impairment; (3) the impairment meets or equals an impairment
listed in appendix 1 of the social security regulations; (4)
the impairment prevents the claimant from doing past relevant
work; and (5) the impairment prevents the claimant from doing
any other substantial gainful activity.
Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir.
2007). If, at any step, the Commissioner determines that the
claimant is or is "not disabled, the inquiry is
terminated." Id. at 448. The Commissioner must
assess the claimant's RFC before proceeding to Steps 4
and 5. Perez v. Barnhart, 415 F.3d 457, 461 (5th
Cir. 2005). For Steps 1 through 4, the claimant has the
burden to show disability, but the Commissioner has the
burden at Step 5 to "show that there is other
substantial work in the national economy that the claimant
can perform." Audler, 501 F.3d at 448. If the
Commissioner carries that Step 5 burden, "the burden
shifts back to the claimant to rebut th[e] finding" that
he or she can perform other work that is available in the
national economy. Newton v. Apfel, 209 F.3d 448, 453
(5th Cir. 2000).
review of the Commissioner's decision to deny benefits is
limited to determining whether that decision is supported by
substantial evidence and whether the proper legal standards
are applied." Sun v. Colvin, 793 F.3d 502, 508
(5th Cir. 2015) (quoting Boyd v. Apfel, 239 F.3d
698, 704 (5th Cir. 2001)). "Substantial evidence is
'such relevant evidence as a reasonable mind might accept
to support a conclusion' and constitutes 'more than a
mere scintilla' but' less than a preponderance'
of evidence." Hardman v. Colvin, 820 F.3d 142,
147 (5th Cir. 2016) (quoting Newton, 209 F.3d at
452). "In applying the substantial evidence standard,
the court scrutinizes the record to determine whether such
evidence is present, but may not reweigh the evidence or
substitute its judgment for the Commissioner's."
Perez, 415 F.3d at 461.
"the substantial evidence test does not involve a simple
search of the record for isolated bits of evidence which
support the [Commissioner's] decision."
Singletary v. Bowen,798 F.2d 818, 822-23 (5th Cir.
1986). The courts instead "must consider the record as a
whole, and the substantiality of evidence must take into
account whatever in the record fairly detracts from its
weight." Id. (citations and internal quotation
marks and alterations omitted); accord Pena v.
Colvin, No. 5:14-CV-016-C, 2015 WL 738255, at *4 (N.D.
Tex. Feb. 20, 2015) (adopting recommendation of Mag. J.);
Lara v. Colvin, No. 5:13-CV-177-C, 2014 WL988547,
at*3 (N.D.Tex.Mar. 13, 2014) (same). However, the courts
neither "try the questions de novo" nor
substitute their "judgment for the Commissioner's,