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Parker v. Berryhill

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

March 8, 2018

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



         Pursuant 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 Act.[1] 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 Commissioner's decision.

         I. BACKGROUND

         Plaintiff 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, [2]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.

         The 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))[3] 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.[4] R. 14.

         The ALJ then determined that Plaintiff retained the residual functional capacity ("RFC")[5] to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a), 416.967(a).[6] 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 R. 22.

         The 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 review").

         Plaintiff 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.


         In general, [7] 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).

         "Judicial 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.

         Nevertheless, "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, even ...

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