United States District Court, N.D. Texas, Wichita Falls Division
LINDA D. PERSINGER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM AND OPINION
RAY, JR. UNITED STATES MAGISTRATE JUDGE
Linda Persinger (“Persinger”) 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
(“DIB”) under Title II and Title XVI of the
Social Security Act (“SSA”). ECF No. 1. After
considering the pleadings, briefs, and the administrative
record, the Court AFFIRMS the
STATEMENT OF THE CASE
filed an application for DIB on June 11, 2014, alleging that
her disability began on May 12, 2013. (Transcript
(“Tr.”) 161). The Commissioner denied her claim
initially and on reconsideration, and Fields requested a
hearing, which was held on March 29, 2016, before
Administrative Law Judge (“ALJ”) Trace Baldwin,
with Persinger and her attorney, Brad Johnson, present.
Id. Vocational Expert (“VE”) David Couch
testified at the hearing. (Tr. 10). The ALJ issued his
decision on July 12, 2016, finding that Persinger was not
entitled to disability benefits. (Tr. 19).
decision, the ALJ employed the statutory five-step analysis.
At step one, he found that Persinger had not engaged in
substantial gainful activity since May 12, 2013, the alleged
disability onset date. (Tr. 12). At Step Two, he found that
Persinger had the medically determinable impairments of
migraine headaches, hyperlipidemia, cervical and lumbar
degenerative disc disease, colitis with diarrhea, obesity,
anxiety disorder, and affective disorder. (Tr. 12). The ALJ
then found that Persinger did not have an impairment or
combination of impairments that was severe. (Tr. 13). The ALJ
did not continue past Step Two and denied Persinger's
claim. (Tr. 19).
Appeals Council denied Persinger's request for review on
May 25, 2017. (Tr. 6). 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
to Persinger's pleadings, testimony at the administrative
hearing, and the administrative record, she was fifty-six
years old on the alleged disability onset date, and
fifty-eight years old at the time of the administrative
hearing. (ECF No. 17 at 5). The highest grade of schooling
she completed was high school. Id. Persinger had
past work as a nurse's aide, hostess, caregiver, and
STANDARD OF REVIEW
II, 42 U.S.C. § 404 et seq., of the SSA governs
the disability insurance program in addition to numerous
regulations concerning disability insurance. See 20
C.F.R. Pt. 404. The SSA defines a disability as a
“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” that
prevents the claimant from engaging in substantial gainful
activity. 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 sequential
five-step analysis. 20 C.F.R. § 404.1520. First, the
claimant must not be presently working at any substantial
gainful activity. 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. Masterson v. Barnhart,
309 F.3d 267, 271 n.2 (5th Cir. 2002); 20 C.F.R. §
404.1527. Second, the claimant must have an impairment or
combination of impairments that is severe. 20 C.F.R. §
404.1520(c); see Stone v. Heckler, 752 F.2d 1099,
1100-03 (5th Cir. 1985). Third, disability exists if the
impairment or combination of impairments meets or equals an
impairment listed in the Listing of Impairments
(“Listing”), 20 C.F.R. Pt. 404, Subpt. P, App. 1.
20 C.F.R. § 404.1520(d). Fourth, if the claimant's
medical status alone does not constitute a disability, the
impairment or impairments must prevent the claimant from
returning to her past relevant work. 20 C.F.R. §
404.1520(e). Fifth, the impairment must prevent the claimant
from doing any work, considering the claimant's RFC, age,
education, and past work experience. Crowley v.
Apfel, 197 F.3d 197, 197-98 (5th Cir. 1999); 20 C.F.R.
§ 404.1520(f). “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). Before
proceeding to steps four and five, the Commissioner must
assess a claimant's RFC-“the most [a claimant] can
still do despite [her] limitations.” Perez v.
Barnhart, 415 F.3d 457, 461 (5th Cir. 2005); 20 C.F.R.
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. 1988);
Harris, 209 F.3d at 417. “Conflicts in the
evidence are for the [Commissioner] and not the courts to
resolve.” Newton v. Apfel, 209 F.3d 448, 452
(5th Cir. 2000) (quoting Brown v. Apfel, 192 F.3d
492, 496 (5th Cir. 1999)).
raises two issues on appeal. First, she argues that the ALJ
erred by determining none of her impairments were severe.
Second, she argues that had the ALJ properly determined her