United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER DENYING PLAINTIFF'S MOTION
FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR
FRANCES H. STACY UNITED STATES MAGISTRATE JUDGE
the Magistrate Judge 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.
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").
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
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
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.
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.
determined Emmitt's RFC as able to complete work at full
functional levels but with certain limitations. Tr. 193. This
• Limited simple one, two, three type repetitive tasks
• Occasional intersection with the public, coworkers,
• No. production rate pace work
• Simple word recognition
• Simple addition, subtraction
• No. reading for meaning
• No. written requirements
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.
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.
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.
requested review before the AC, which was denied on July 21,
2017, resulting in the ALJ's findings and decision
becoming final. Tr. 3.
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
evidence is set forth in the transcript, pages 1-1290
(Document No. 8). There is no dispute to the facts contained
Standard for Review of Agency Decision
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.
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.
Burden of Proof
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
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
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
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).
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