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Persinger v. Berryhill

United States District Court, N.D. Texas, Wichita Falls Division

June 25, 2018

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



         Plaintiff 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 Commissioner's decision.


         Persinger 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).

         In his 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).

         The 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 review.”).


         According 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 janitor. Id.


         Title 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).

         To 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. § 416.945(a)(1).

         The 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)).

         IV. ANALYSIS

         Persinger 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 ...

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