United States District Court, N.D. Texas, Fort Worth Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR. UNITED STATES MAGISTRATE JUDGE.
filed this action under 42 U.S.C. § 405(g) seeking
judicial review of the unfavorable decision by the
Commissioner of the Social Security Administration
(“Commissioner”) regarding his application for
disability insurance benefits (“DIB”) under Title
II of the Social Security Act (“SSA”). (ECF Nos.
1, 14). After considering the pleadings, briefs, and the
administrative record, the undersigned recommends that United
States District Judge Reed O'Connor
AFFIRM the Commissioner's decision.
STATEMENT OF THE CASE
applied for DIB on July 16, 2015, alleging disability based
on degenerative disc disease of the lumbar spine,
osteoarthritis of the left shoulder, and depression. (ECF No.
14 at 5-6; Tr. 19). The Commissioner initially denied his DIB
application on November 19, 2015 and again upon
reconsideration on April 11, 2016. (Tr. 17). He timely filed
a request for a hearing before an administrative law judge
(“ALJ”). (Id.). Plaintiff attended the
hearing on June 8, 2017 in Fort Worth, Texas and testified.
(Id.). Also present were his attorney and a
vocational expert (“VE”). (Id.). On
October 2, 2017, the ALJ rendered a decision finding that
Plaintiff was not disabled. (Tr. 17-28).
the ALJ employed the statutory five-step analysis and
established during step one that Plaintiff had not engaged in
substantial gainful activity since May 5, 2015. (Tr. 19). At
step two, the ALJ determined that he had the severe
impairments of degenerative disc disease of the lumbar spine
and osteoarthritis of the left shoulder. (Id.). At
step three, the ALJ found that his impairments did not meet
or medically equal one of the impairments listed in 20 C.F.R.
Pt. 404(p). (Tr. 21). The ALJ concluded that Plaintiff
retained the residual functional capacity (“RFC”)
to perform the full range of sedentary work as defined in 20
C.F.R. § 404.1567(a). (Id.). At step four, the
ALJ determined that Plaintiff was unable to perform his past
relevant work. (Tr. 26). And at step five, the ALJ decided
that there were a significant number of jobs in the national
economy that Plaintiff could perform. (Id. at
Appeals Council denied review on April 23, 2018. (Tr. 1-7).
Therefore, the ALJ's decision is the Commissioner's
final decision and is properly before the Court for review.
Higginbotham v. Barnhart, 405 F.3d 332, 334 (5th
Cir. 2005) (“[T]he Commissioner's ‘final
decision' includes the Appeals Council's denial of [a
claimant's] request for review.”).
to his pleadings, testimony at the administrative hearing,
and the administrative record, Plaintiff was fifty-six years
old on the alleged disability onset date of May 5, 2015 and
fifty-eight years old at the time of the administrative
hearing. (Tr. 17, 26). He completed high school and has an
employment history that includes work as a police sergeant
and truck driver. (ECF No. 14 at 4; Tr. 26). Plaintiff
asserts that his physical and mental impairments render him
disabled under the SSA.
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). 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 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 his 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(g). “The claimant bears the burden of
showing that [he] 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 [his]
limitations.” Perez v. Barnhart, 415 F.3d 457,
461-62 (5th Cir. 2005); 20 C.F.R. § 416.945(a)(1).
Court's decision is limited to a determination of whether
the Commissioner applied the correct legal standards and
whether substantial evidence in the record supports the
decision. Leggett v. Chater, 67 F.3d 558, 564 (5th
Cir. 1995); Hollis v. Bowen, 837 F.2d 1378, 1382
(5th Cir. 1988). “Substantial evidence is such relevant
evidence as a responsible mind might accept to support a
conclusion.” Boyd v. Apfel, 239 F.3d 698, 704
(5th Cir. 2001). “It is more than a mere scintilla and
less than a preponderance.” Id. “A
finding of no substantial evidence is appropriate only if no
credible evidentiary choices or medical findings support the
decision.” Id. The Court may neither reweigh
the evidence in the record nor substitute its judgment for
the Commissioner's, but it will scrutinize the record to
determine if evidence is present. Harris v. Apfel,
209 F.3d 413, 417 (5th Cir. 2000); Hollis, 837 F.2d
at 1383. “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
Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir.
raises three issues on appeal: (1) the ALJ failed to
recognize and consider all of his vocationally significant
impairments; (2) the ALJ improperly substituted his own
medical judgment for the medical opinion evidence of record;
and (3) the ALJ failed to carry his burden of establishing
the existence of other work, in significant numbers, that
Plaintiff can perform. (ECF No. 14 at 7-12).
The ALJ Recognized and Considered all Vocationally
first argues that the ALJ did not apply the correct legal
standard at step two of the sequential evaluation in
determining whether he has a severe impairment. (ECF No. 14
at 7-8). Plaintiff argues that this legal error was