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Smith v. Berryhill

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

July 11, 2019

Wendell Smith, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of the Social Security Administration Defendant.

          MEMORANDUM AND RECOMMENDATION

          PETER BRAY UNITED STATES MAGISTRATE JUDGE.

         Wendell Smith appeals the Commissioner's final decision denying his application for social security benefits. (D.E. 1.) This case was referred to the magistrate judge for findings and recommendation pursuant to 28 U.S.C. § 636(b)(1). Pending before the court is Plaintiff's Motion for Summary Judgment (D.E. 10) and Defendant's Cross-Motion for Summary Judgment. (D.E. 11.) The court recommends that the final decision of the Commissioner be AFFIRMED and this case be DISMISSED with prejudice.

         1. Procedural Posture

         Smith applied for disability insurance benefits on May 6, 2015. (Tr. 179.) He claimed that he was disabled due to physical and mental limitations with an alleged disability onset date of October 10, 2014. (Tr. 217-18.) In his application, Smith stated that he was born in 1961 and worked as a truck driver until he became disabled. (Tr. 179, 219.) The Social Security Administration (SSA) denied Smith's application. (Tr. 78-79.) Smith filed a request for reconsideration, but the SSA again denied his application. (See Tr. 90-91.)

         On July 21, 2017, an administrative hearing was held. (See Tr. 32.) ALJ Gary J. Suttles issued a decision on August 23, 2017, finding Smith not disabled. (Tr. 15-27.) Smith appealed. The Appeals Council denied Smith's request for review on November 7, 2017. (Tr. 1-5.) Smith filed this complaint in federal court to appeal the Commissioner's final decision. (D.E. 1.)

         2. Legal Standards

         The Social Security Act provides disability insurance benefits to people who have contributed to the program and have a physical or mental disability. See 42 U.S.C. § 423. It defines disability as the “inability to engage in any substantial gainful activity by reason of any 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.” See 42 U.S.C. § 423(d)(1)(A).

         A. Five-step analysis

         The Commissioner uses a sequential, five-step approach to determine whether the claimant is disabled. 20 C.F.R. § 404.1520 (2017). The claimant bears the burden of proof on the first four steps, but the Commissioner bears the burden on the fifth step. Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000). A finding that the claimant is disabled or not disabled at any point in the five-step review terminates the analysis. Johnson v. Bowen, 851 F.2d 748, 751 (5th Cir. 1988).

         At step one, the ALJ must determine whether the claimant is involved in substantial gainful activity. 20 C.F.R. § 404.1520(b) (2017). A person who is working and engaging in substantial gainful activity is not disabled, regardless of the medical findings. Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991).

         At step two, the ALJ must decide whether the claimant's impairment is severe. 20 C.F.R. § 404.1520(c) (2017). A person who does not have a “severe impairment” is not disabled. Wren, 925 F.2d at 125. An impairment is 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.” Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985).

         Once the ALJ finds that the claimant has a severe impairment, the ALJ must determine, at step three, if the impairments “meet[] or equal[] a listed impairment in appendix 1.” 20 C.F.R. § 404.1520(d); see Listing of Impairments at 20 C.F.R. Part 404, Subpt. P, App. 1. All relevant evidence in the claimant's case record is considered. 20 C.F.R. §§ 404.1526(c), 416.926(c) (2017). If the requirements of a listing are met, the individual will be considered disabled. Id.

         When the claimant's impairments do not meet or equal a listed impairment, the ALJ must proceed to assess the claimant's residual functional capacity (RFC) “based on all the relevant medical and other evidence.” 20 C.F.R. § 404.1520(e). An RFC assessment “is a determination of the most the claimant can still do despite his physical and mental limitations and is based on all relevant evidence in the claimant's record.” Perez v. Barnhart, 415 F.3d 457, 462 (5th Cir. 2005) (citing 20 C.F.R. § 404.1545(a)(1)). To assess the RFC, the ALJ must consider all medically determinable impairments, including those not labeled severe at step two. 20 C.F.R. § 416.945(a)(2); Soc. Sec. Rul. 96-8P, 1996 WL 374184, at *5.

         The RFC is used to determine whether the claimant can perform past relevant work at step four. Id. If the claimant is capable of performing the work the claimant has done in the past, the claimant is not disabled. 20 C.F.R. § 404.1520(f). If the ALJ finds that the claimant's RFC precludes the claimant from performing past relevant work, the ALJ must proceed to step five. 20 C.F.R. § 404.1520(g)(1). At this step, the ALJ determines whether the claimant can perform any other work by considering the claimant's RFC and other factors, including age, education, and past work experience. Id.

         B. Standard of review

         This court's “review of the ALJ's disability determination is ‘highly deferential': [it] ask[s] only whether substantial evidence supports the decision and whether the correct legal standards were employed.” Garcia v. Berryhill, 880 F.3d 700, 704 (5th Cir. 2018). “A decision is supported by substantial evidence if credible evidentiary choices or medical findings support the decision.” Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018). “Substantial evidence is more than a mere scintilla but less than a preponderance.” Id. The reviewing court is required to examine the record as a whole to determine whether substantial evidence supported the ALJ's decision. Randall v. Sullivan, 956 F.2d 105, 109 (5th Cir. 1992).

         3. The ALJ's Decision and the Administrative Records

         A. Hearing

         The ALJ held a hearing on July 21, 2017. (Tr. 34.) Smith and a vocational expert testified. Smith testified that he lost his job as a truck driver because he could not pass a physical examination due to his diminished eyesight, inability to lift objects, and pain in his feet and back. (Tr. 37, 55.) He testified that he was on medication to treat diabetes. (Tr. 37-38.) Other physical conditions relevant to Smith's alleged disability included neuropathy, sleep apnea, and hypertension. (Tr. 57.) Smith testified that he experienced pain with ten minutes of sitting and twenty or twenty-five minutes of walking. (Tr. 54.)

         Smith testified that he received mental health treatment two years before the hearing when he had insurance. (Tr. 41.) Smith testified that he only took mental health medications for a month, when he had a prescription. Id. Smith testified that he could not get the prescription refilled due to lack of finances. Id.

         The ALJ asked Smith about his history of cocaine and marijuana use, which was documented in his medical records. (Tr. 49; See Tr. 429.) Smith denied using either cocaine or marijuana during the relevant period. (See Tr. 49-50.) Smith testified that he regularly drank whiskey. (Tr. 58, 61.) He testified that his wife brought him two bottles of whiskey a week for the previous two years. (Tr. 61.) Smith denied an alcohol problem. (Tr. 62.)

         The ALJ asked Smith about his monthly expenses, and Smith testified that his wife's annual income of $30, 000-35, 000 was his only source of income. (Tr. 45.) Smith could not answer most questions about his monthly expenses and stated that his wife managed all finances. (See Tr. 45-47.)

         As to activities of daily living, Smith testified that he read the newspaper and watched television at home. He had no hobbies. (Tr. 51-52.) He denied having any social engagements and did not know how to use a computer. (Tr. 52.)

         The ALJ asked the VE what a person with the following RFC could perform:

an individual closely approaching advanced age, and an individual of advanced age, I'm going to put him at medium, 50 occasionally and 25 frequently; sit/stand/walk six of eight in an eight-hour day. Push/pull unlimited. He can climb stairs. No. ladders, ropes, scaffolds, or running. He can bend, stoop, crouch, crawl, balance, stoop, and squat. He has the ability to get along with others. He can understand at least detailed instruction, concentrate and perform detailed tasks, and respond and adapt to workplace changes and supervision.

(Tr. 63.) The VE testified that a person with that RFC could do Smith's past work as a truck driver. Id. The VE also testified that someone with a similar RFC who could only do light work could not work as a truck driver but could work as an office helper, mail clerk, ...


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