United States District Court, N.D. Texas, Abilene Division
REPORT AND RECOMMENDATION
RAY, JR., UNITED STATES MAGISTRATE JUDGE
to 42 U.S.C. § 405(g), Plaintiff seeks judicial review
of a decision of the Commissioner of Social Security
("Commissioner") denying her application for
Disability Insurance Benefits ("DIB") under Title
II of the Social Security Act. (See ECF No. 1, Compl.).
The Commissioner has filed an answer, (see ECF No.
11, Def's Answer), and a certified copy of the transcript
of the administrative proceedings, (see ECF No. 13,
SSA Admin. R. [hereinafter "R."]), including the
hearing before the Administrative Law Judge
("ALJ"). The parties have briefed the issues. (See
ECF No. 16, PL's Opening Br.; ECF No. 17, Def's Resp.
Br.; ECF No. 18, PL's Reply Br.). The United States
District Judge referred the case pursuant to 28 U.S.C. §
636, and the parties have not consented to proceed before a
United States Magistrate Judge.
accordance with Special Order No. 3-326 issued on June 15,
2019, the undersigned will preside over all civil cases
assigned or referred to Magistrate Judge E. Scott Frost until
a replacement magistrate judge has been appointed for the
Abilene Division. Because the parties have not consented to
have all further proceedings conducted by a magistrate judge,
the undersigned issues this report and recommendation;
directs the Clerk of Court to reassign the case to Senior
District Judge Sam R. Cummings for all further proceedings;
and after considering the pleadings, briefs, and
administrative record, recommends that the Court reverse the
Commissioner's decision and remand this case for further
OF THE CASE
filed an application for disability insurance benefits in
September 2013, alleging a September 16, 2012 onset of
disability. R. 220. She has identified the following
conditions that limit her ability to work: (1) attention
deficit hyperactivity disorder ("ADHD"); (2) two
torn, bulging discs in her lower back; (3) degenerative disc
disease; (4) mild dextroscoliosis; (5) mild central canal
stenosis; and (6) significant hearing loss. R. 253.
Commissioner denied the application initially and on
reconsideration. See R. 110-14, 118-21. On October
4, 2017, and May 26, 2017, Administrative Law Judge
("ALT") Larry C. Marcy held hearings on Plaintiffs
claim. See R. 34-69. At the first hearing, Plaintiff
amended her alleged date of onset to September 1, 2013.
See R. 314-15. The ALJ issued an unfavorable
decision following the first hearing, but the Appeals Council
("AC") vacated that decision and remanded for
additional administrative proceedings. See R. 10,
viewed the record as "unclear" as to "whether
there are jobs that exist in significant numbers in the
national economy that the claimant can perform," because
the hypothetical posed to the vocational expert did not
include a specific restriction that the ALJ had found in his
"articulation of the residual functional capacity,"
i.e., a need "to alternate between standing and sitting
at will." R. 107. The AC instructed the ALJ to take
certain actions on remand, including "before relying on
the vocational expert evidence the Administrative Law Judge
will identify and resolve any conflicts between the
occupational evidence provided by the vocational expert and
information in the Dictionary of Occupational Titles (DOT)
and its companion publication, the Selected Characteristics
of Occupations." R. 107-08.
October 4, 2017, the ALJ issued a second unfavorable decision
finding that Plaintiff was not disabled and was capable of
performing work that existed in significant numbers in the
national economy. R. 10-28. Applying the sequential,
five-step analysis set out in the regulations (20 C.F.R.
§ 404.1520(a)(4)) the ALJ first determined that
Plaintiff had not engaged in substantial gainful activity at
any time relevant to the decision. R. 11. The ALJ next
determined that Plaintiff suffers from the following severe
impairments: "degenerative changes in the lumbar spine,
obesity, bilateral sensorineural hearing loss, right
calcaneal spur, attention deficit-hyperacti-vity disorder
("ADHD") and personality disorder NOS"
Id. Third, the ALJ found that Plaintiff did not have
an impairment or combination of impairments that met or
equaled the severity of any impairment in the
then determined that Plaintiff retained the residual
functional capacity ("RFC")to perform a limited range of
light work as defined in 20 C.F.R. §
404.1567(b). R. 21-26. The ALJ found that Plaintiff was
limited to lifting/carrying twenty pounds, ten pounds
frequently and could stand or walk, "off and on, for a
total of six hours out of an eight-hour workday." R. 21.
Due to Plaintiffs pain complaints, obesity, and calcaneal
spur, the ALJ found that "she must alternate sitting and
standing at will, and she can only occasionally stoop, kneel,
crawl, and crouch." Id. The ALJ noted that this
"residual functional capacity is quite generous, in
light of the absence of significant physical findings, and
affords the claimant the great benefit of every doubt and the
most liberal interpretation of her symptoms."
Id. The ALJ later reiterated those limitations while
also adding: "Due to hearing loss, she must work in a
quiet environment, she cannot use a telephone to communicate,
and she can hear normal conversation if it is face-to-face.
She is limited to simple tasks. She can get along with the
public and coworkers on a frequent basis." R. 26.
upon the RFC determination and testimony from a vocational
expert ("VE") about the exertional demands and
skill requirements of Plaintiff s prior jobs, the ALJ
concluded that Plaintiff could not perform her past relevant
work. Id. Considering Plaintiffs age, education,
work experience, and RFC, the ALJ concluded that Plaintiff
could perform jobs that exist in significant numbers in the
national economy. R. 26-28. Relying on the Medical-Vocational
Guidelines ("Grids") contained in Appendix 2 of the
regulations, 20 C.F.R. Part 404, Subpt. P, the ALJ noted that
Plaintiff would not be disabled if she retained the RFC for a
full range of light work. R. 27.
recognizing that Plaintiffs additional exertional and
nonexertional limitations precluded a full range of light
work, the Grids could "be used as a framework for
decisionmaking in finding there are a significant number of
jobs in the national and regional economies the claimant can
perform." Id. The ALJ thus utilized testimony
from the VE to find at Step 5 of the evaluative sequence that
"there are a significant number of jobs in existence in
the national and regional economies that the claimant can
perform." Id. The ALJ then concluded that
Plaintiff was not disabled within the meaning of the Social
Security Act at any relevant time. R. 28.
Appeals Council received and considered Plaintiff s reasons
(Ex. 2OE) for disagreeing with the ALJ decision when it
denied review on January 4, 2018. See R. 1-4. It
found that those reasons do not provide a basis for changing
the decision. R. 1. The ALJ's decision is the
Commissioner's final decision and is properly before the
Court for review. See Higginbotham v. Barnhart, 405
F.3d 332, 334 (5th Cir. 2005) (stating that the
Commissioner's final decision "includes the Appeals
Council's denial of [a claimant's] request for
commenced this appeal on February 27, 2018. (See
Compl.). She presents three issues for review. (See
ECF No. 16 at 1).
birth date of April 6, 1971, R. 220, Plaintiff was a
"younger individual" under applicable regulations
throughout the relevant period, see 20 C.F.R. §
404.1563(c). She has an Associate's Degree, R. 254, and
past relevant work as a shoe salesperson, billing clerk,
claims clerk, and real estate clerk, R. 26. She claims her
physical and mental impairments render her disabled.
general,  a person is disabled within the meaning of
the Social Security Act, when he or she is unable "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).
'"Substantial gainful activity' is work activity
involving significant physical or mental abilities for pay or
profit." Masterson v. Barnhart, 309 F.3d 267,
271 n.2 (5th Cir. 2002) (citing 20 C.F.R. §
404.1572(a)-(b)). To evaluate a disability claim, the
Commissioner employs the previously mentioned
five-step sequential analysis to determine whether (1) the
claimant is presently working; (2) the claimant has a severe
impairment; (3) the impairment meets or equals an impairment
listed in appendix 1 of the social security regulations; (4)
the impairment prevents the claimant from doing past relevant
work; and (5) the impairment prevents the claimant from doing
any other substantial gainful activity.
Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir.
2007). If, at any step, the Commissioner determines that the
claimant is or is "not disabled, the inquiry is
terminated." Id. at 448. The Commissioner must
assess the claimant's RFC before proceeding to Steps 4
and 5. Perez v. Barnhart, 415 F.3d 457, 461 (5th
Cir. 2005). For Steps 1 through 4, the claimant has the
burden to show disability, but the Commissioner has the
burden at Step 5 to "show that there is other
substantial work in the national economy that the claimant
can perform." Audler, 501 F.3d at 448. If the
Commissioner carries that Step 5 burden, "the burden
shifts back to the claimant to rebut th[e] finding" that
he or she can perform other work that is available in the
national economy. Newton v. Apfel, 209 F.3d 448, 453
(5th Cir. 2000).
review of the Commissioner's decision to deny benefits is
limited to determining whether that decision is supported by
substantial evidence and whether the proper legal standards
are applied." Sun v. Colvin,793 F.3d 502, 508
(5th Cir. 2015) (quoting Boyd v. Apfel, 239 F.3d
698, 704 (5th Cir. 2001)). "Substantial evidence is
'such relevant evidence as a reasonable mind might accept
to support a conclusion' and constitutes 'more than a
mere scintilla' but 'less than a preponderance'
of evidence." Hardman v. Colvin,820 F.3d 142,
147 (5th Cir. 2016) (quoting Newton, 209 F.3d at
452). "In applying the substantial evidence standard,
the court scrutinizes the record to determine whether such
evidence is present, but may not reweigh the evidence or
substitute its judgment for the Commissioner's."
Perez, 415 F.3d at 461. The courts neither "try
the questions de novo" nor substitute their
"judgment for the ...