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Shepard v. Commissioner, Social Security Administration

United States District Court, E.D. Texas, Marshall Division

June 2, 2018

RODNEY SHEPARD
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION

          MEMORANDUM OPINION

          ROY S. PAYNE, UNITED STATES MAGISTRATE JUDGE

         On July 24, 2015, Administrative Law Judge Daniel Curran issued a decision finding that Petitioner Rodney O. Shepard was not disabled within the meaning of the Social Security Act from July 19, 2011 through the date of the decision. Mr. Shepard, who was 49 with a high school education and a welding certificate at that time, was found to be suffering from severe impairments including panic disorder, atrial fibrillation, obesity and sleep apnea. These impairments resulted in restrictions on his ability to work, and he had not engaged in any substantial gainful activity since at least July 19, 2011. Before that time, he had worked as concrete truck driver, and was not able to return to that type of work.

         After reviewing the medical records and receiving the testimony at the July 14, 2015 hearing, the ALJ determined that Petitioner had the residual functional capacity (RFC) to perform light work, as defined in the Social Security Regulations, in that he can lift and carry 20 pounds occasionally and 10 pounds frequently, can stand or walk for 6 hours, and can sit for 6 hours, in an 8-hour workday. His is able to understand, remember and carry out only simple instructions; and can make simple, work-related decisions. He can respond appropriately to supervision, co-workers and usual work situations, and can deal with changes in a routine work setting. However, his work must not require joint decision-making or teamwork, or more than occasional contact with the general public. His work cannot require him to direct, or receive directions from, the general public. His work must be simple, routine, solitary and repetitive, not requiring close supervision. He must avoid exposure to unguarded hazards, such as uneven walking surfaces, open nip points, unprotected heights, moving machinery, open pits, open flames, open pools of water, and sharp objects. He must work in a controlled environment that does not require more than occasional exposure to extremes of temperature, loud noises, smoke, flashing lights or other intrusive environmental distractions.

         Considering Petitioner's RFC, the ALJ relied upon the testimony of a Vocational Expert, Russell B. Bowden, and found that Petitioner had the residual functional capacity to perform a variety of jobs available in the national economy in significant numbers as those jobs are described in the Dictionary of Occupational Titles published by the Department of Labor. Those jobs include assembler, packer, and hardware assembler. This resulted in a finding of no disability. Petitioner appealed this finding to the Appeals Council, which denied review on February 1, 2017. Petitioner timely filed this action for judicial review seeking remand of the case for award of benefits.

         This Court's review is limited to a determination of whether the Commissioner's final decision is supported by substantial evidence on the record as a whole and whether the Commissioner applied the proper legal standards in evaluating the evidence. See Martinez v. Chater, 64 F.3d 172, 173 (5th Cir.1995); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.1994), cert. denied, 514 U.S. 1120, 115 S.Ct. 1984, 131 L.Ed.2d 871 (1995). Substantial evidence is more than a scintilla, but can be less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir.1995). A finding of no substantial evidence will be made only where there is a “conspicuous absence of credible choices” or “no contrary medical evidence.” Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir.1988) (citing Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.1983)). In reviewing the substantiality of the evidence, a court must consider the record as a whole and “must take into account whatever in the record fairly detracts from its weight.” Singletary v. Bowen, 798 F.2d 818, 823 (5th Cir.1986).

         Petitioner raises three issues on this appeal:

1. The ALJ's decision finding Petitioner did not meet Listing 12.06 is not supported by substantial evidence.
2. The ALJ's assessment that Petitioner has the residual functional capacity to perform light work is not supported by substantial evidence.
3. The ALJ erred in discrediting Petitioner without discussing evidence that explains his non-compliance at times.

         Analysis:

         Issue No. 1:

         Consideration of Petitioner's arguments about Listing 12.06 is greatly complicated by the fact that Petitioner's briefing mixes in medical records put in the record after the last ALJ hearing in July 2015. Indeed, they refer to evaluations of Petitioner that occurred after the hearing. The Appeals Council noted that these records could not be considered without a new application for benefits. Tr. 2. Yet Petitioner does not discuss this fact. For instance, the record quoted at length from pages 12 through 14 of Petitioner's brief and attributed to the consulting psychologist Dr. Betty Feir, is actually a report from the family physician Dr. Richard Hozdic regarding a November 17, 2015 evaluation, long after the ALJ hearing. Tr. 1724. Similarly, the long quotes on pages 14 and 15, which actually are from Dr. Feir, are from a September 19, 2016 evaluation, more than a year after the ALJ hearing. Tr. 12.

         In the Fifth Circuit, the rule is that in order to justify a remand to the Commissioner, any new evidence “must relate to the time period for which benefits were denied, and that it not concern evidence of a later-acquired disability or of the subsequent deterioration of the previously non-disabling condition.” Bradley v. Bowen, 809 F.2d 1054, 1058 (5th Cir. 1987). It must also be evidence that might have changed the outcome below. Id. Based on the fact that the ALJ discounted the earlier reports of Dr. Hozdic (Tr. 889) concerning Petitioner's expected absenteeism due to his impairments, the Court finds it unlikely that the later report would have changed the outcome. Tr. 123. However, the same cannot be said of the later report of Dr. Feir. Her September 19, 2016 findings seem persuasive and material to the Listing 12.06 issue.[1]However, they are clearly not about the relevant time period. Rather they suggest a “subsequent deterioration, ” which Bradley teaches should not be considered on this appeal. Dr. Feir performed a psychological consultative examination on October 5, 2011, which painted a very different picture and supported the ALJ's RFC. Tr. 769-775. The ALJ discussed this report at length. Tr. 116-117. The change in the five years between the two examinations suggests a clear deterioration.

         Removing from the analysis the subsequent records, there is more than substantial evidence supporting the ALJ's finding that Listing 12.06 is not met. At the November 6, 2012 hearing, Dr. Jimmy Cole provided expert medical testimony on Petitioner's mental impairment claim and testified that the Listing was not met. Tr. 155. Likewise, at the July 14, 2015 hearing, Dr. Maxwell, a psychiatrist, testified to the same effect, finding that there were no “marked” limitations in functioning. Tr. 189-191. This was also the conclusion of Dr. Caren Phelan, a consultative psychologist, ...


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