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Derick B. v. Berryhill

United States District Court, N.D. Texas, Fort Worth Division

July 9, 2019

DERICK B., [1]Plaintiff,



         Plaintiff 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 Recommendation.


         Plaintiff 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).

         Specifically, 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.).

         The ALJ 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. (Tr. 30-31).

         The 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.”).


         According 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.


         Title 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).

         To 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).

         The 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. 1990)).

         IV. ...

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