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Emmitt v. Saul

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

August 1, 2019




         Before the Magistrate Judge[1] in this social security appeal is Defendant's Cross Motion for Summary Judgment (Document No. 15) and Memorandum in Support (Document No. 15), Plaintiffs Motion for Summary Judgment and Response to Defendant's Brief (Document No. 20), and Defendant's Response to Plaintiffs Motion for Summary Judgment (Document No. 21). After considering the cross motions for summary judgment, the administrative record, and the applicable law, the Magistrate Judge ORDERS, for reasons set forth below, that Defendant's Motion for Summary Judgment (Document No. 15) is GRANTED, Plaintiffs Motion for Summary Judgment (Document No. 20) is DENIED, and the decision of the Commissioner is AFFIRMED for further proceedings.

         I. Introduction

         Plaintiff, Myesha Monique Emmitt ("Emmitt") brings this action pursuant to the Social Security Act ("Act"), 42 U.S.C. 405(g), seeking judicial review of a final decision of the Commissioner of Social Security Administration ("Commissioner") denying her applications for disability insurance benefits ("DIB") and supplemental security income ("SSI").

         Emmitt claims the Administrative Law Judge ("ALJ"), Daniel E. Whitney, found Emmitt was not disabled based on no substantial evidence and by applying improper legal standards. Emmitt argues that the ALJ failed to follow the Appeals Council's ("AC") remand order by not following the requirements set forth by Social Security Ruling (SSR) 82-59 concerning Plaintiffs refusal of treatment. Additionally, Emmitt states that the ALJ's residual functional capacity ("RFC") erred by providing no evidence to support the change in capacity to interact with the public from the first ALJ decision to the second.

         The Commissioner responds that there is substantial evidence in the record to support the ALJ's decision that Emmitt was not disable, that the decision comports with applicable law, and that the decision should, therefore be affirmed. The Commissioner contends that the ALJ was not required to follow SSR 82-59 because the ALJ had not invoked 20 C.F.R. § 404.1530 and § 416.930 to find Emmitt was not disabled. Instead, the ALJ found Emmitt disabled at step 5. The Commissioner also argues the ALJ based the RFC on substantial evidence and that the ALJ's first decision was no longer binding.

         II. Administrative Proceeding

         On June 23, 2014, Emmitt filed for SSI and DIB claiming she has been disabled since May 13, 2011, due to bipolar disorder and learning disorder. Tr. 434-46. Her applications were initially denied, as well as in reconsideration. Tr. 127-84, 229-36, 240-328. Emmitt requested a hearing before an ALJ. Tr. 217-28. The Social Security Administration granted the request and a hearing was held on April 4, 2016. Tr. 61-110.

         On April 27, 2016, the ALJ found that Emmitt was not disabled. Tr. 188. The ALJ found that Emmitt met the insured status requirements and that she has not engaged in substantial gainful activity since May 13, 2011, the alleged onset date. Tr. 190. While the ALJ found the impairments of bipolar disorder, personality disorder, and learning disability, were severe, the impairments did not meet or equal the severity of one of the listed impairments.

         The ALJ determined Emmitt's RFC as able to complete work at full functional levels but with certain limitations. Tr. 193. This includes:

• Limited simple one, two, three type repetitive tasks
• Occasional intersection with the public, coworkers, and supervisors
• No. production rate pace work
• Simple word recognition
• Simple addition, subtraction
• No. reading for meaning
• No. written requirements

         (Tr. 193). At step five, the vocational expert ("VE") found that Emmitt was capable of being a laundry worker, an industrial cleaner, or an office cleaner, and was not disabled. Tr. 106. Additionally, the ALJ found that Emmitt did not meet the requirements as set forth by SSR 82-59, as she failed to follow a prescribed treatment. Tr. 201.

         Emmitt sought review from the Appeals Council ("AC"). The Appeals Council will grant a request to review an ALJ's decision if any of the following circumstances are present: (1) there appears to be an abuse of discretion by the ALJ; (2) the ALJ made an error of law in the determination; (3) substantial evidence does not support the ALJ's actions, findings, or conclusions; (4) a broad policy issue may affect the public interest; or (5) there is new and material evidence and the decision is contrary to the weight of all the record evidence. 20 C.F.R. § 404.970(a). The AC granted Emmitt's request for review and remanded the matter to the ALJ to obtain additional evidence regarding Emmitt's refusal of treatment, pursuant to SSR 89-52, and instructed the ALJ to reassess the RFC and VE's evidence, if necessary. Tr. 214.

         Another hearing took place on February 27, 2017. Tr. 112-26. Then, the ALJ reconsidered Emmitt's case and issued a second unfavorable decision on April 19, 2017, again finding Emmitt was not disabled. Tr. 21-36. The ALJ made a new RFC determination and relied on the VE's testimony that Emmitt not disabled. Tr. 35.

         Emmitt requested review before the AC, which was denied on July 21, 2017, resulting in the ALJ's findings and decision becoming final. Tr. 3.

         Emmitt has timely filed her appeal of the ALJ's second decision. The Commissioner has filed a Motion for Summary Judgment (Document No. 15). Likewise, Plaintiff has filed a Motion for Summary Judgment (Document No. 20). This appeal is now ripe for ruling.

         The evidence is set forth in the transcript, pages 1-1290 (Document No. 8). There is no dispute to the facts contained therein.

         III. Standard for Review of Agency Decision

         A court reviewing the Commissioner's denial of disability insurance benefits is limited to determining whether (1) the decision is supported by substantial evidence in the record, and (2) the Commissioner applied the proper legal standards. Higginbotham v. Barnhart, 405 F.3d 332, 335 (5th Cir. 2005); Jones v. Apfel, 174 F.3d 692, 693 (5th Cir. 1999). The court must review the entire record but may not "reweigh the evidence in the record nor try the issues de novo, nor substitute its judgment" for that of the Commissioner, including evidence either favorable or i contrary to the Commissioner decision. Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990); see also Jones, 174 F.3d at 693. If conflicts arise in the evidence, the Commissioner must resolve them. Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992).

         If the Commissioner's findings are supported by substantial evidence, they are conclusive and will be affirmed. 42 U.S.C. § 405(g) (2016); Richardson v. Perales, 402 U.S. 389, 390 (1971). Under the Act, substantial evidence requires "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. Substantial evidence is "more than a scintilla and less than a preponderance." Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). Furthermore, it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983). No. substantial evidence is found "only where there is a 'conspicuous absence of credible choices' or 'no contrary medical evidence.'" Id. (quoting Hemphill v. Weinberger, 483 F.2d 1127 (5th Cir. 1973)).

         IV. Burden of Proof

         A claimant holds the burden of proof in establishing entitlement to disability insurance benefits under the Act. Johnson v. Bowen, 864 F.2d 340, 344 (5th Cir. 1988). The Act defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C.§ 423(d)(1)(A). Laboratory diagnostic techniques must prove the impairment. Id. at (d)(3). Additionally, the impairment must be so severe as to limit the claimant as follows:

[s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [s]he lives, or whether a specific job vacancy exists for [her], or whether [s]he would be hired if he applied for work.

Id. at (d)(2)(A). Presence of an impairment does not establish the severity to determine disability. In assessing whether an applicant is capable of performing any "substantial gainful activity," the Secretary uses a five-step sequential analysis:

1. An individual who is working and engaging in substantial gainful activity will not be found disabled regardless of the medical findings.
2. An individual who does not have a "severe impairment" will not be found to be disabled.
3. An individual who meets or equals a listed impairment in Appendix 1 of the regulations will be considered disabled without consideration of vocational factors.
4. If an individual is capable of performing the work he has done in the past, a finding of "not disabled" must be made.
5. If an individual's impairment precludes him from performing his past work, other factors including age, education, past work experience, and residual functional capacity must be considered to determine if other work can be performed.

Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (paraphrasing 20 C.F.R. § 404.1520(b)-(f) (1988)); see also Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990). The claimant has the burden of proof for the first four steps, but the burden shifts to the Commissioner for the fifth. Thomas v. Shalala, 56 F.3d 1385 (5th Cir. 1995); see also Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989). If the Commissioner satisfies the burden to show claimant is capable of engaging in some type of alternative work that exists in the national economy, the burden of proof shifts back to the claimant to rebut this finding. Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000); see also Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987). If at any point in the analysis a disability determination is made, it is conclusive and terminates any further analysis. Thomas, 56 F.3d at 1385; see, e.g., Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988).

         In determining whether substantial evidence supports the ALJ's decision, the court weighs four factors: (1) the objective medical facts; (2) the diagnosis and expert opinions of treating physicians on subsidiary questions of fact; (3) subjective evidence of pain and disability as testified to by the plaintiff and corroborated by family and neighbors; and (4) the plaintiffs educational background, work history and present age. Wren v. Sullivan, 925 ...

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