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, 11). After considering the pleadings, briefs, and the
administrative record, the undersigned recommends that United
States District Judge Reed O'Connor
REVERSE and REMAND the
Commissioner's decision in accordance with this
STATEMENT OF THE CASE
applied for DIB on August 12, 2015, alleging disability based
on difficulty in concentrating, depression, lower back and
neck pain, carpal tunnel, and joint pain in his hands and
knees. (ECF No. 11 at 7-8; Tr. 22). The Commissioner
initially denied his DIB application on November 4, 2015 and
again upon reconsideration on March 7, 2016. (ECF No. 11 at
5; Tr. 141; Tr. 146). Plaintiff timely filed a request for a
hearing before an administrative law judge
(“ALJ”). (ECF No. 11 at 5; Tr. 19). He attended
and testified at the hearing before ALJ Jack W. Raines on
March 7, 2017 in Fort Worth, Texas. (ECF No. 11 at 5; Tr.
20). Also present at the hearing were his attorney and a
vocational expert (“VE”). (Id.). On June
28, 2017, the ALJ rendered a partially favorable decision
finding that Plaintiff became disabled as of February 21,
2017, but that he was not disabled prior to that date. (ECF
No. 1 at 5-6; Tr. 20-32).
the ALJ employed the statutory five-step analysis and
established during step one that Plaintiff had not engaged in
substantial gainful activity since September 14, 2014. (Tr.
22). At step two, the ALJ determined that he had the severe
impairments of mild degenerative disc disease of the lumbar
spine, carpal tunnel syndrome, degenerative joint disease of
the right first toe and knees, obesity, major depressive
disorder, and bipolar disorder. (Id.). At step
three, the ALJ found that his impairments did meet or
medically equal one of the impairments listed in 20 C.F.R.
Pt. 404(p) beginning on February 21, 2017. (Tr. 25; Tr. 29).
The ALJ concluded that prior to February 21, 2017, he
retained the residual functional capacity (“RFC”)
to lift and carry twenty pounds occasionally and ten pounds
frequently. (Tr. 25). He could stand and walk for four hours
and sit for six hours in an eight-hour workday.
(Id.). He could not climb ropes, ladders, or
scaffold, but could balance, kneel, stoop, crouch, crawl, and
occasionally climb ramps and stairs. (Id.). He could
frequently reach, handle, finger, and feel bilaterally, but
could not work around hazardous moving machinery or at
unprotected heights. (Id.). He could understand,
remember, and carry out short, plain instructions in a
simple, routine work environment and make judgments on
uncomplicated work-related decisions. (Id.). He
could appropriately interact with supervisors and have
occasional contact with coworkers, but could not have
face-to-face contact with the public. (Id.).
Finally, he could appropriately respond to usual work
pressures and changes in a work setting. (Id.).
concluded that Plaintiff retained the identical RFC beginning
on February 21, 2017, but was unable to concentrate, persist,
and maintain pace in the workplace. (Tr. 29). At step four,
the ALJ determined that Plaintiff was unable to perform his
past relevant work as of September 14, 2014, the alleged
disability onset date. (Tr. 30). And at step five, the ALJ
decided that there were a significant number of jobs in the
national economy that he could perform prior to February 21,
2017. (Id.). The ALJ, however, determined that
beginning on February 21, 2017, there were not a significant
number of jobs in the national economy that he could perform.
Appeals Council denied review on May 5, 2018. (ECF No. 11 at
6; Tr. 1-5). 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 Plaintiff's pleadings, testimony at the administrative
hearing, and the administrative record, he was forty-one
years old on the alleged disability onset date of September
14, 2014, and forty-three years old at the time of the
administrative hearing. (Tr. 46). He completed a college
education. (Tr. 48). His employment history includes work as
a car salesman, poker room supervisor, veteran service
representative, and gambling dealer. (Tr. 49-52). He also
served in the United States Army during the Gulf War from
1992 to 1996. (ECF No. 11 at 6). He asserts that his physical
and mental impairments rendered him disabled under the SSA
prior to February 21, 2017.
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.