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Connie C. v. Berryhill

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

May 30, 2019

CONNIE C., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          D. GORDON BRYANT, JR. UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Connie C. seeks judicial review under 42 U.S.C. § 405(g) of the Acting Social Security Commissioner's decision denying her application for disability insurance benefits (DIB). The United States District Judge transferred this case to the undersigned United States Magistrate Judge for further proceedings. All parties did not consent to jurisdiction by the magistrate judge and, in accordance with the order of transfer, the undersigned now files this Report and recommends that the United States District Judge reverse the Commissioner's decision and remand the case for further proceedings consistent with this order.

         I. Statement of the

         Case Plaintiff filed an application for DIB on December 1, 2014, alleging disability beginning September 30, 2013. Tr. 98, 173. The Social Security Administration (SSA) initially denied her application on March 9, 2015, and again upon reconsideration on September 22, 2015. Tr. 115, 120. Plaintiff subsequently requested a hearing, and on August 31, 2016, she appeared and testified before an administrative law judge (ALJ). Tr. 65. An attorney represented Plaintiff at the hearing. Id.

         The ALJ determined on November 17, 2016, that Plaintiff is not disabled. Tr. 44-56. The Appeals Council denied review of the ALJ's decision on November 29, 2017. Tr. 23-28. Following denial of a request for review, the ALJ's decision becomes the Commissioner's final decision and is properly before the court for review. Sims v. Apfel, 530 U.S. 103, 107 (2000); see Higginbotham v. Barnhart, 405 F.3d 332, 337 (5th Cir. 2005).

         II. Standard of Review

         A court reviewing the Commissioner's denial of disability insurance benefits is limited to determining whether: (1) the decision is supported by substantial evidence in the record; and (2) the Commissioner applied the proper legal standards. See 42 U.S.C. § 405(g) (2012); see e.g., Higginbotham, 405 F.3d at 335. "Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hames v. Heckler, 1Q1 F.2d 162, 164 (5th Cir. 1983). A reviewing court must examine the entire record, including evidence favorable to the Commissioner as well as contrary evidence. See Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990). The court "may not reweigh the evidence in the record, nor try the issues de novo, nor substitute [the Court's] judgement for the [Commissioner's]." Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). If the Commissioner's findings are supported by substantial evidence, they are treated as conclusive and will be affirmed. See Richardson v. Perales, 402 U.S. 389, 390(1971).

         Disability is defined as the inability 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), 1382c(a)(3)(A) (2012). In making a disability determination, the Commissioner conducts a five-step sequential evaluation process to determine whether: (1) the claimant is currently working; (2) the claimant has a "severe impairment"; (3) the impairment meets or equals an impairment listed in Appendix 1 of the regulations; (4) the claimant is capable of performing past relevant work; and (5) the claimant, after taking into account age, education, previous work experience, and residual functional capacity (RFC), is capable of performing any other work. 20 C.F.R. § 404.1520(a)(4) (2016); Audler v. Astrue, 501 F.3d 446, 447-18 (5th Cir. 2007). If a disability determination is made at any step in the process, the finding is conclusive and the analysis terminates. See Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). Where a claimant is found to be not disabled at any step, however, the fact finder must consider the next level of the sequential evaluation. 20 C.F.R. § 404.1520(a); Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985).

         At the first four steps in the analysis, the claimant bears the burden of proving her disability by establishing a physical or mental impairment. Greenspan, 38 F.3d at 236. Once established, the Commissioner must then demonstrate that the claimant is capable of performing other work that exists in significant numbers in the national economy. Id. After making such a showing, the burden shifts back to the claimant to rebut the Commissioner's finding. See Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000).

         III. Factual Background

         Plaintiff claims she became disabled on September 30, 2013, at age sixty-one due to multiple health issues. See Tr. 46, 54, 200-04. She has a high school education, and last worked as a secretary. Tr. 54, 81, 214-15. Plaintiff lives alone, cares for herself, and is able to walk short distances and drive occasionally, but has difficulty performing even basic household chores due to her health. See Tr. 217-24.

         The ALJ found that Plaintiff has severe impairments consisting of the following: degenerative disc disease of the lumbar spine; lumbosacral and cervical radiculitis; cervical stenosis; cervical disc bulge; obesity; thyroid disorder; fatigue; malaise; degenerative joint disease with knee pain; right knee replacement by history; osteoarthritis left acromioclavicular joint; bilateral shoulder pain; osteoarthritis and vitamin D deficiency; left distal radius fracture; chronic pain syndrome; myofascial pain syndrome; fibromyalgia; ankle pain secondary to chronic ankle strain/sprain; and peroneal tendonitis. Tr. 46. The ALJ further determined that, beginning August 2015, Plaintiff also suffered from severe mental impairments, including somatic symptom disorder, major depressive disorder, and generalized anxiety disorder. Id. The ALJ concluded that Plaintiff has the RFC to perform sedentary work, as defined in 20 C.F.R. § 404.1567(b), with certain physical and mental limitations; specifically, the ALJ found that "[b]eginning August 2015, [Plaintiff] is further limited to jobs that would require understanding, remembering, and carrying out detailed tasks, but not complex tasks."[2] Tr. 48. At step four, the ALJ determined that Plaintiff could perform past relevant work through July 2015, but as of August 2015 is unable to perform any past relevant work; however, relying on the testimony of a vocational expert (VE), the ALJ concluded at step five Plaintiff could perform the jobs of receptionist, insurance clerk, and rehab clerk, which exist in significant numbers in the national economy. Tr. 53-55. Accordingly, the ALJ determined that Plaintiff is not disabled as defined in 20 C.F.R. § 404.1520(f). Tr. 55.

         Plaintiff challenges the ALJ's decision on the following grounds: (1) the ALJ's mental RFC determination is not supported by substantial evidence; (2) the ALJ's step 5 determination is flawed because the ALJ posed an incomplete hypothetical question to the VE; and (3) the ALJ improperly interpreted a 2014 Functional Capacity Evaluation (FCE) in making her RFC determination regarding Plaintiffs ability to use her hands. PL's Opening Br., at 1 (ECF No. 12). The undersigned finds that Plaintiffs first point of error has merit, and therefore recommends the court remand the case for further administrative proceedings.[3]

         IV. ...


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