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Kendall A. v. Saul

United States District Court, N.D. Texas, Abilene Division

September 4, 2019

KENDALL A., [1] Plaintiff,
v.
ANDREW M. SAUL, [2] Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          HAL R. RAY, JR., UNITED STATES MAGISTRATE JUDGE

         Pursuant 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.[3] (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.

         In 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 administrative proceedings.

         STATEMENT OF THE CASE

         Plaintiff 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.

         The 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, 107-08.

         The AC 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.

         On 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 listings.[4] Id.

         The ALJ then determined that Plaintiff retained the residual functional capacity ("RFC")[5]to perform a limited range of light work as defined in 20 C.F.R. § 404.1567(b).[6] 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.

         Based 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.

         While 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.

         The 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 review").

         Plaintiff commenced this appeal on February 27, 2018. (See Compl.). She presents three issues for review. (See ECF No. 16 at 1).

         FACTUAL BACKGROUND

         With a 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.

         LEGAL STANDARD

         In general, [7] 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).

         "Judicial 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 ...


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