United States District Court, N.D. Texas, Lubbock Division
REPORT AND RECOMMENDATION
GORDON BRYANT, JR. UNITED STATES MAGISTRATE JUDGE.
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.
Statement of the
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
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).
Standard of Review
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,
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.
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).
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.
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." 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.
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.