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Miller v. Berryhill

United States District Court, S.D. Texas, Houston Division

July 2, 2019

LAURI DENEE MILLER, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM AND ORDER

          FRANCES H. STACY, UNITED STATES MAGISTRATE JUDGE.

         Before the Magistrate Judge[1] in this Social Security appeal is Defendant's Motion for Summary Judgment (Document No. 13), Plaintiffs Response (Document No. 18), Plaintiffs Motion for Summary Judgment (Document No. 15), and Defendant's Response there to (Document No. 17). After considering the cross Motion for Summary Judgment and the applicable law, Magistrate Judge orders that Defendant's Motion for Summary Judgment is DENIED, Plaintiffs Motion for Summary Judgment is GRANTED, and decision is REMANDED for further proceedings.

         BACKGROUND

         Procedural History

         Plaintiff, Lauri Denee Miller ("Miller") filed a claim for supplemental security income benefits on May 12, 2016, under title XVI of the Social Security Act, alleging disability onset date of February 1, 2009, due to herniated discs in her back, epilepsy, migraines, bleeding ulcers, severe mental problems, post-traumatic stress disorder, bipolar disorder, and Crohn's disease. Doc. 16 at 1. The claim was initially denied on November 10, 2016, and upon reconsideration on January 25, 2017. Miller then filed a written request for a hearing in front of an ALJ on March 2, 2017. Tr. 10. The hearing took place on October 19, 2017 and the ALJ issued a decision on December 1, 2017, finding that Miller was not disabled within the meaning of the Social Security Act. Id. at 10, 18. On February 16, 2018, the Appeals Council denied review, making the ALJ's decision the Commissioner's final agency decision. Tr. 1-4. Miller then filed this appeal pursuant to 42 U.S.C. § 405(g).

         Standard of Review

         A financially needy individual who is disabled, aged, or blind may apply for supplemental security income benefits under Title XVI regardless of their insured status. 42 U.S.C. § 1382(a). Section 405(g) of the Act governs the standard of review for social security disability cases. This court's review of a Commissioner's decision "is limited to two inquiries: (1) whether the decision is supported by substantial evidence on the record as a whole, and (2) whether the Commissioner applied the proper legal standard." Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014). "If the Commissioner's findings are supported by substantial evidence, they must be affirmed." Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). Additionally, "an ALJ's factual findings are 'conclusive' if supported by 'substantial evidence.'" Biestek v. Berryhill, 139 S.Ct. 1148, 1149 (2019).

         Substantial evidence, "means-and means only- "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 1154. Substantial evidence "is more than a mere scintilla and less than a preponderance." Masterson v. Barnhart, 309 F.3d 267, (5th Cir. 2002). This court "will not re-weigh the evidence, try the questions de novo, or substitute our judgment for the Commissioner's, even if we believe the evidence weighs against the Commissioner's decision." Id. at 272. "Conflicts in the evidence are for the Commissioner to resolve, not the courts." Id. "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)

         Burden of Proof

         A claimant is found to be disabled when, "she is unable 'to engage in any substantial gainful activity by reason of [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.'" Graves v. Colvin, 837 F.3d 589, 592 (5th Cir. 2016). The existence of such a disability must be demonstrated by, "medically acceptable clinical and laboratory diagnostic findings." 42 U.S.C. § 423(d)(3), (d)(5). The ALJ uses a sequential five-step analysis to determine if a claimant is disabled:

(1) whether the claimant is presently performing substantial gainful activity;
(2) whether the claimant has a severe impairment;
(3) whether the impairment meets or equals a listed impairment;
(4) whether the impairment prevents the claimant from doing past relevant work; and
(5) whether the impairment prevents the claimant from performing any other substantially gainful activity.

Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018). "The claimant bears the burden of proof on the first four steps, but the Commissioner bears the burden on the fifth step." Id. "A finding that a claimant is disabled or is not disabled at any point in the five-step review is conclusive and terminates the analysis." Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).

         Under the first step, "substantial" activity means, "work activity that involves doing significant physical or mental activities." 20 C.F.R. § 416.972. "Gainful" activity is, "work activity that you do for pay or profit." Id. If the ALJ finds that the "... individual ... is working and engaging in substantial gainful activity will not be found disabled regardless of the medical findings." Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991); 20 C.F.R. §§ 404.1520(b), 416.920(b) (1989).

         In the second step, to be "severe" means an impairment or combination of impairments must significantly limit the individuals physical or mental ability to do basic work activities. 20 C.F.R. § 416.920. Under Fifth Circuit binding precedent, "[a]n impairment can be considered as not severe only if it is a slight abnormality having such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience." Salmond, 892 F.3d at 817 (quoting Loza v. Apfel, 219 F.3d 378, 391 (5th Cir. 2000)). "Re-stated, an impairment is severe if it is anything more than a "slight abnormality" that "would not be expected to interfere" with a claimant's ability to work." Salmond, 892 F.3d at 817. This step requires the claimant to make a de minimus showing. Id. If the ALJ finds that the claimant does not "have any impairment or combination of impairments which significantly limits [their] physical or mental ability to do basic work activities, [the ALJ] will find that [the claimant] [does] not have a severe impairment and are, therefore, not disabled." 20 C.F.R. § 416.920(c).

         If the ALJ finds the existence of a severe impairment under step two, the ALJ moves on to step three of the analysis. Under step three, the ALJ will determine whether the impairment or combination of impairments meets or medically equals one or more of the listings in Appendix 1 of 20 C.F.R. § 404 Subpart P. "If [the claimant] [has] an impairment(s) which meets the duration requirement and is listed in appendix 1 or is equal to a listed impairment(s), [the ALJ] will find [the claimant] disabled without considering your age, education, and work experience. 20 C.F.R. § 416.920(d). If the ALJ finds that". .. [the claimant] does not meet or equal a listed impairment, [the ALJ] will assess and make a finding about [the claimant's] residual functional capacity [(RFC)] based on all the relevant medical and other evidence in [the] case record ..." Id.

         The ALJ will use the RFC assessment under step four to determine whether the claimant can perform their past relevant work. 20 C.F.R. § 416.920(e). "The RFC is the individual's ability to do physical and mental tasks on a sustained basis despite limitations from her impairments. In determining the RFC, the [ALJ] must consider all of a claimant's impairments, including those that are not severe." Giles v. Astrue, 433 Fed.Appx. 241, 245 (5th Cir. 2011). "[The ALJ] will assess [the claimant's] residual functional capacity based on all the relevant evidence in [the claimant's] case record" as well as all impairments found to be supported by the record. 20 C.F.R. 404.1545(a)(1). "If an individual is capable of performing the work he has done in the past, a finding of "not disabled" must be made." Wren, 925 F.2d at 125.

         If the claimant meets their burden of proving she is not currently working and is incapable of performing past relevant work, the burden shifts to the ALJ for step five. If the ALJ finds that the claimant's impairment keeps them from performing their past work, the ALJ will consider [the] assessment of [the claimant's] residual functional capacity... age, education, and work experience to see if [the claimant] can make an adjustment to other work [existing in the national economy]." 20C.F.R416.920(a)(4)(v).

         To determine whether substantial evidence supports the ALJ's decision, the court weighs four factors: (1) objective medical facts; (2) diagnosis and opinions of treating and examining physicians; (3) claimants' subjective evidence of pain and disability; and (4) claimants age, education, and work history. Wren, 925 F.2d at 126.

         Discussion

         Miller raises two issues on appeal. First, that the ALJ failed to weigh the opinion of the consultative examiner. Second, that failure of the ALJ resulted in an RFC that is ...


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