United States District Court, E.D. Texas, Tyler Division
MEMORANDUM OPINION AND ORDER
NI'COLE MITCHELL UNITED STATES MAGISTRATE JUDGE.
November 29, 2017, Plaintiff initiated this lawsuit by filing
a complaint seeking judicial review of the
Commissioner’s decision denying her application for
Social Security benefits. The matter was transferred to the
undersigned with the consent of the parties pursuant to 28
U.S.C. § 636. For the reasons below, the
Commissioner’s final decision is
REVERSED and REMANDED
pursuant to sentence four of 42 U.S.C. § 405(g) for
further consideration consistent with this opinion.
protectively filed an application for Disability Insurance
Benefits and an application for Supplemental Security Income
on January 27, 2014, alleging a disability onset date of
March 6, 2013. The applications were denied initially and on
reconsideration. Plaintiff filed a request for a hearing
before an Administrative Law Judge (“ALJ”). An
ALJ conducted a hearing on January 14, 2016, and then
conducted a supplemental hearing on September 19, 2016. The
ALJ issued a decision on October 27, 2016, concluding that
Plaintiff was not disabled prior to February 16, 2016, but
became disabled on that date and has continued to be disabled
through the date of the decision. Plaintiff submitted a
request for review of the ALJ’s decision. The Appeals
Council denied the request for review on October 6, 2017. As
a result, the ALJ’s decision became that of the
Commissioner. Plaintiff filed this lawsuit on November 29,
2017, seeking judicial review of the Commissioner’s
II of the Act provides for federal disability insurance
benefits. Title XVI of the Act provides for supplemental
security income for the disabled. The relevant law and
regulations governing the determination of disability under a
claim for disability insurance benefits are identical to
those governing the determination under a claim for
supplemental security income. See Davis v. Heckler,
759 F.2d 432, 435 n. 1 (5th Cir. 1983); Rivers
v. Schweiker, 684 F.2d 1144, 1146, n. 2 (5th
Cir. 1982); Strickland v. Harris, 615 F.2d 1103,
1105 (5th Cir. 1980).
review of the denial of disability benefits under section
205(g) of the Act, 42 U.S.C. § 405(g), is limited to
“determining whether the decision is supported by
substantial evidence in the record and whether the proper
legal standards were used in evaluating the evidence.”
Bowling v. Shalala, 36 F.3d 431, 435 (5th
Cir. 1994) (quoting Villa v. Sullivan, 895 F.2d
1019, 1021 (5th Cir. 1990)); Muse v.
Sullivan, 925 F.2d 785, 789 (5th Cir. 1991)
(per curiam). A finding of no substantial evidence
is appropriate only where there is a conspicuous absence of
credible choices or no contrary medical evidence. Johnson
v. Bowen, 864 F.2d 340, 343–44 (5thCir.
1988) (citing Hames v. Heckler, 707 F.2d 162, 164
(5th Cir. 1983)). Accordingly, the Court
“may not reweigh the evidence in the record, nor try
the issues de novo, nor substitute [the
Court’s] judgment for the [Commissioner’s], even
if the evidence preponderates against the
[Commissioner’s] decision.” Bowling, 36
F.3d at 435 (quoting Harrell v. Bowen, 862 F.2d 471,
475 (5th Cir. 1988)); see Spellman v.
Shalala, 1 F.3d 357, 360 (5th Cir. 1993);
Anthony v. Sullivan, 954 F.2d 289, 295
(5th Cir. 1992); Cook v. Heckler, 750
F.2d 391, 392 (5th Cir. 1985). Rather, conflicts
in the evidence are for the Commissioner to decide.
Spellman, 1 F.3d at 360 (citing Selders v.
Sullivan, 914 F.2d 614, 617 (5th Cir. 1990));
Anthony, 954 F.2d at 295 (citing Patton v.
Schweiker, 697 F.2d 590, 592 (5th Cir.
1983)). A decision on the ultimate issue of whether a
claimant is disabled, as defined in the Act, rests with the
Commissioner. Newton v. Apfel, 209 F.3d 448,
455–56 (5th Cir. 2000); Social Security
Ruling (“SSR”) 96-5p.
evidence is more than a scintilla but less than a
preponderance-that is, enough that a reasonable mind would
judge it sufficient to support the decision.” Pena
v. Astrue, 271 Fed.Appx. 382, 383 (5th Cir.
2003) (citing Falco v. Shalala, 27 F.3d 160, 162
(5th Cir. 1994)). Substantial evidence includes
four factors: (1) objective medical facts or clinical
findings; (2) diagnoses of examining physicians; (3)
subjective evidence of pain and disability; and (4) the
plaintiff’s age, education, and work history. Fraga
v. Bowen, 810 F.2d 1296, 1302 n. 4 (5th Cir.
1987). If supported by substantial evidence, the decision of
the Commissioner is conclusive and must be affirmed.
Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct.
1420, 28 L.Ed.2d 842 (1971). However, the Court must do more
than “rubber stamp” the Administrative Law
Judge’s decision; the Court must “scrutinize the
record and take into account whatever fairly detracts from
the substantiality of evidence supporting the
[Commissioner’s] findings.” Cook, 750
F.2d at 393 (5th Cir. 1985). The Court may remand
for additional evidence if substantial evidence is lacking or
“upon a showing that there is new evidence which is
material and that there is good cause for the failure to
incorporate such evidence into the record in a prior
proceeding.” 42 U.S.C. § 405(g); Latham v.
Shalala, 36 F.3d 482, 483 (5th Cir. 1994).
claimant for disability has the burden of proving a
disability. Wren v. Sullivan, 925 F.2d 123, 125
(5th Cir. 1991). The Act defines
“disability” as an “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 can be expected to last
for a continuous period of not less than 12 months.” 42
U.S.C. §§ 416(i)(1)(A) and 423(d)(1)(A). A
“physical or mental impairment” is an anatomical,
physiological, or psychological abnormality which is
demonstrable by acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. §§ 423(d)(2)(A) and
order to determine whether a claimant is disabled, the
Commissioner must utilize a five– step sequential
process. Villa, 895 F.2d 1022. A finding of
“disabled” or “not disabled” at any
step of the sequential process ends the inquiry.
Id.; see Bowling, 36 F.3d at 435 (citing
Harrell, 862 F.2d at 475). Under the five–step
sequential analysis, the Commissioner must determine at Step
One whether the claimant is currently engaged in substantial
gainful activity. At Step Two, the Commissioner must
determine whether one or more of the claimant’s
impairments are severe. At Step Three, the commissioner must
determine whether the claimant has an impairment or
combination of impairments that meet or equal one of the
listings in Appendix I. Prior to moving to Step Four, the
Commissioner must determine the claimant’s Residual
Functional Capacity (“RFC”), or the most that the
claimant can do given his impairments, both severe and
non–severe. Then, at Step Four, the Commissioner must
determine whether the claimant is capable of performing his
past relevant work. Finally, at Step Five, the Commissioner
must determine whether the claimant can perform other work
available in the local or national economy. 20 C.F.R.
§§ 404.1520(b)–(f). An affirmative answer at
Step One or a negative answer at Steps Two, Four, or Five
results in a finding of “not disabled.” See
Villa, 895 F.2d at 1022. An affirmative answer at Step
Three, or an affirmative answer at Steps Four and Five,
creates a presumption of disability. Id. To obtain
Title II disability benefits, a plaintiff must show that he
was disabled on or before the last day of his insured status.
Ware v. Schweiker, 651 F.2d 408, 411 (5th
Cir. 1981), cert denied, 455 U.S. 912, 102 S.Ct.
1263, 71 L.Ed.2d 452 (1982). The burden of proof is on the
claimant for the first four steps, but shifts to the
Commissioner at Step Five if the claimant shows that he
cannot perform his past relevant work. Anderson v.
Sullivan, 887 F.2d 630, 632–33 (5th
Cir. 1989) (per curiam).
procedure for evaluating a mental impairment is set forth in
20 CFR §§ 404.1520a and 416.920a (the
“special technique” for assessing mental
impairments, supplementing the five-step sequential
analysis). First, the ALJ must determine the presence or
absence of certain medical findings relevant to the ability
to work. 20 CFR §§ 404.1520a(b)(1), 416.920a(b)(1).
Second, when the claimant establishes these medical findings,
the ALJ must rate the degree of functional loss resulting
from the impairment by considering four areas of function:
(a) activities of daily living; (b) social functioning; (c)
concentration, persistence, or pace; and (d) episodes of
decompensation. 20 CFR §§ 404.1520a(c)(2–4),
416.920a(c)(2–4). Third, after rating the degree of
loss, the ALJ must determine whether the claimant has a
severe mental impairment. 20 CFR §§ 404.1520a(d),
416.920a(d). If the ALJ’s assessment is
“none” or “mild” in the first three
areas of function, and is “none” in the fourth
area of function, the claimant’s mental impairment is
“not severe, unless the evidence otherwise indicates
that there is more than a minimal limitation in [the
claimant’s] ability to do basic work activities.”
20 CFR §§ 404.1520a(d)(1), 416.920a(d)(1). Fourth,
when a mental impairment is found to be severe, the ALJ must
determine if it meets or equals a Listing. 20 CFR
§§ 404.1520a(d)(2), 416.920a(d)(2). Finally, if a
Listing is not met, the ALJ must then perform a residual
functional capacity assessment, and the ALJ’s decision
“must incorporate the pertinent findings and
conclusions” regarding the claimant’s mental
impairment, including “a specific finding as to the
degree of limitation in each of the functional areas
described in [§§ 404.1520a(c)(3),
416.920a(c)(3)].” 20 CFR §§ 404.1520a(d)(3)
and (e)(2), 416.920a(d)(3) and (e)(2).
made the following findings in his October 27, 2016 decision:
1. The claimant meets the insured status requirements of the
Social Security Act through December 31, 2016.
2. The claimant has not engaged in substantial gainful
activity since the alleged onset date (20 CFR § 404.1571
et seq. and 416.971 et seq.).
3. Since the alleged onset of disability, March 6, 2013, the
claimant has had the following severe impairments:
degenerative disc disease of the spine, degenerative joint
disease bilateral knees, affective disorder, and anxiety
disorder (20 CFR 404.1520(c) and 416.920(c)).
4. Since the alleged onset date of disability, March 6, 2013,
the claimant has not had an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the
undersigned finds that prior to February 16, 2016, the date
the claimant became disabled, the claimant had the residual
functional capacity to perform medium work as defined in 20
CFR 404.1567(c) and 416.967(c) in that she can lift and/or
carry 50 pounds occasionally and 25 pounds frequently; stand
and/or walk 6 hours of an 8 hour workday and sit for 6 hours
of an 8 hour workday. However, she was limited to performing
simple, repetitive tasks.
6. After careful consideration of the entire record, the
undersigned finds that beginning on February 16, 2016, the
claimant has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b) in
that she can lift and/or carry 20 pounds occasionally and 10
pounds frequently; stand and/or walk 6 hours of an 8 hour
workday and sit for 6 hours of an 8 hour workday. She is,
mentally, limited to performing simple, repetitive tasks.
7. Since March 6, 2013, the claimant has been unable to
perform any past relevant work (20 CFR 404.1565 and 416.965).
8. Prior to the established disability onset date, the
claimant was an individual of advanced age. The
claimant’s age category has not changed since the
established disability onset date (20 CFR 404.1563 and
9. The claimant has at least a high school education and is
able to communicate in English (20 CFR ...