United States District Court, N.D. Texas, Fort Worth Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE, NOTICE, AND ORDER
RAY, JR. UNITED STATES MAGISTRATE JUDGE
Christy Givens (“Givens”) filed this action under
42 U.S.C. § 405(g), seeking judicial review of the
denial by the Commissioner of the Social Security
Administration (“Commissioner”) of her
application for disability insurance benefits and Supplement
Security Income under Title XVI of the Social Security Act
(“SSA”). ECF No. 1. After considering the
pleadings, briefs, and the administrative record, the
undersigned RECOMMENDS that Senior United
States District Judge Terry R. Means AFFIRM
the Commissioner's decision.
STATEMENT OF THE CASE
filed applications for disability insurance benefits and
Supplement Security Income on January 14, 2014. Transcript
(“Tr.”) 12. Givens alleged limiting conditions of
back surgery, chronic back pain, migraines, perforated ulcer,
degenerative heart valve, neuropathy, high blood pressure,
hypothyroidism, depression, and arthritis. Tr. 306. The
Commissioner denied her benefits initially on June 12, 2014,
and upon reconsideration on October 21, 2014. Tr. 12,
305-330. Givens requested a hearing before an Administrative
Law Judge (“ALJ”), and a hearing was held before
Judge Carol K. Bowen in Fort Worth, Texas, on June 22, 2015.
Tr. 12, 39. Attorney Carol Squires represented Givens at the
hearing. Id. Vocational Expert (“VE”)
Todd Harden testified at the hearing. Id. The ALJ
issued her decision on August 25, 2015, finding that Givens
was not entitled to disability benefits. Tr. 33.
decision, the ALJ employed the statutory five-step analysis.
At step one, she found that Givens had not engaged in
substantial gainful activity since November 28, 2013, the
alleged disability onset date. Tr. 14, Finding 2. At step
two, the ALJ found that Givens had the severe impairments of
chronic back pain, lumbar degenerative disc disease,
congenital thoracic kyphosis, cervical bone spurs, left knee
patella fracture status post surgical repair, left foot pain,
major depressive disorder, and hypertension. Tr. 14, Finding
3. At step three, the ALJ found that Givens's impairments
did not meet or medically equal the severity of one of the
listed impairments in 20 C.F.R. § 404(P)(1). Tr. 15,
Finding 4. The ALJ therefore determined that Givens had the
residual functional capacity (“RFC”) to perform
light work as defined at 20 C.F.R. §§ 404.1567(b)
and 416.967(b), except for no operation of foot controls; no
climbing, including ropes, ladders, or stairs; no kneeling,
crouching, or crawling; occasional balancing and stooping;
can sustain concentration and attention sufficient to
understand, remember, and carry out detailed tasks, but not
complex tasks, in a routine work setting. Tr. 17, Finding 5.
four, the ALJ found that Givens was capable of performing her
past relevant work as a waitress, an appointment clerk, and a
cashier II, as this work does not require the performance of
any work-related activities that would be precluded by
Givens's RFC. Tr. 32, Finding 6. The ALJ based this
conclusion on the testimony of the VE, who testified that a
hypothetical individual with Givens's RFC would be able
to perform her past relevant work. Id. Because the
ALJ determined that Givens could perform her past relevant
work at step four, she did not continue to step five. The ALJ
found that Givens was not under a disability at any time from
November 28, 2013, through the date of her decision on August
25, 2015. Tr. 33, Finding 7.
Appeals Council denied Givens's request for review on
December 23, 2016. Tr. 1-8. Therefore the ALJ's decision
became the Commissioner's final decision and is properly
before the Court for review. See Higginbotham v.
Barnhart, 405 F.3d 332, 336 (5th Cir. 2005)
(“[T]he Commissioner's final decision includes the
Appeals Council's denial of a request for
was born on February 23, 1959. Tr. 277. The highest grade of
schooling she completed was twelfth grade. Tr. 44. Her past
work included work as a cashier, an assistant manager, and a
temporary worker. Tr. 45-48, 268-76.
STANDARD OF REVIEW
II, 42 U.S.C. § 404 et seq. of the SSA controls
the disability insurance program as well as numerous
regulatory provisions concerning disability insurance.
See 20 C.F.R. Pt. 404. The SSA defines a 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); McQueen v.
Apfel, 168 F.3d 152, 154 (5th Cir. 1999).
determine whether a claimant is disabled and thus entitled to
disability benefits, the Commissioner employs a five-step
sequential evaluation process. 20 C.F.R. §
404.1520(a)(4). For step one, the claimant must not be
presently working at any substantial gainful activity to gain
disability benefits. 20 C.F.R. § 404.1520(a)(4)(i).
“Substantial gainful activity” means work
activity involving the use of significant physical or mental
abilities for pay or profit. 20 C.F.R. § 404.1572;
Masterson v. Barnhart, 309 F.3d 267, 271 n.2 (5th
Cir. 2002). For step two, the claimant must have an
impairment or combination of impairments that is severe. 20
C.F.R. § 404.1520(c); see also Stone v.
Heckler, 752 F.2d 1099, 1100-03 (5th Cir. 1985). For
step three, disability exists if the impairment or
combination of impairments meets or equals an impairment
listed in the Listing of Impairments (“Listing”)
found in 20 C.F.R. Pt. 404, Subpt. P, App. 1. 20 C.F.R.
§ 404.1520(d). Before proceeding to step four, the
Commissioner must assess the claimant's RFC-“the
most the claimant can still do despite [her] physical and
mental limitations.” Perez v. Barnhart, 415
F.3d 457, 461 (5th Cir. 2005); 20 C.F.R. §
416.945(a)(1). For step four, if the claimant's medical
status alone does not constitute a disability, the impairment
must prevent the claimant from returning to his past relevant
work. 20 C.F.R. § 404.1520(e). For step five, the
impairment must prevent the claimant from doing any work,
considering the claimant's RFC, age, education, and past
work experience. 20 C.F.R. § 404.1520(f); Crowley v.
Apfel, 197 F.3d 194, 197-98 (5th Cir. 1999). “The
claimant bears the burden of showing that she is disabled
through the first four steps of the analysis; on the fifth,
the Commissioner must show that there is other substantial
work in the national economy that the claimant can
perform.” Audler v. Astrue, 501 F.3d 446, 448
(5th Cir. 2007). “If the Commissioner meets this
burden, the claimant must then prove he in fact cannot
perform the alternate work.” Carey v. Apfel,
230 F.3d 131, 135 (5th Cir. 2000) (quoting Crowley,
197 F.3d at 198.)
Court's decision is limited to a determination of whether
the Commissioner applied the correct legal standards and
whether substantial evidence in the record as a whole
supports the decision. Audler, 501 F.3d at 447;
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
“Substantial evidence is such relevant evidence as a
responsible mind might accept to support a conclusion. It is
more than a mere scintilla and less than a preponderance. A
finding of no substantial evidence is appropriate only if no
credible evidentiary choices or medical findings support the
decision.” Boyd v. Apfel, 239 F.3d 698, 704
(5th Cir. 2001) (quoting Harris v. Apfel, 209 F.3d
413, 417 (5th Cir. 2000)). The Court may neither reweigh the
evidence in the record nor substitute its judgment for the
Commissioner's, but it will carefully scrutinize the
record to determine if evidence is present. Hollis v.
Bowen, 837 F.2d 1378, 1383 (5th Cir. ...