United States District Court, E.D. Texas, Tyler Division
MEMORANDUM OPINION AND ORDER
NI'COLE MITCHELL UNITED STATES MAGISTRATE JUDGE.
March 2, 2018, 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 discussed 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 September 29, 2010, alleging a disability onset date of
April 1, 2010. The applications were denied initially and on
reconsideration. An administrative law judge
(“ALJ”) conducted a hearing and issued an
unfavorable decision. The Appeals Council vacated the
decision and remanded the matter to the ALJ for a new
hearing. The ALJ conducted a hearing and issued a second
unfavorable decision on July 3, 2014. The Appeals Council
again vacated the ALJ’s decision and remanded the
matter for a new hearing.
conducted a third hearing on June 21, 2016. The ALJ issued a
decision on February 17, 2017, concluding that Plaintiff was
not disabled under sections 216(i), 223(d), and 1614(a)(3)(A)
the Social Security Act. Plaintiff submitted a request for
review of the ALJ’s decision. The Appeals Council
denied the request for review on January 2, 2018. As a
result, the ALJ’s decision became that of the
Commissioner. After receiving an extension of time from the
Appeals Council to file a civil action, Plaintiff filed this
lawsuit on March 2, 2018, seeking judicial review of the
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).
made the following findings in his February 17, 2017
1. The claimant meets the insured status requirements of the
Social Security Act through December 31, 2017.
2. The claimant has not engaged in substantial gainful
activity since April 1, 2010, the alleged onset date (20 CFR
§ 404.1571 et seq. and 416.971 et
3. The claimant has the following severe impairments:
diabetes mellitus with neuropathy; status post partial
amputation of right foot; sensory peripheral polyneuropathy;
degenerative disc disease; and obesity (20 CFR 404.1520(c)
4. The claimant does not have 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. The claimant had the residual functional capacity to
perform sedentary work as defined by 20 CFR 404.1567 and 20
CFR 416.967, except that she can stand/walk continuously for
30 minutes; frequently, but not constantly, perform bilateral
reaching, handling, fingering, and pushing/pulling; and
occasionally perform overhead reaching and operate bilateral
foot controls. She occasionally can work around dust, odors,
fumes, and humidity/wetness, but she cannot operate motor
vehicles, work around moving machinery, or work in
6. I applied the expedited process provided in 20 CFR
404.1520(h) & 416.920(h), deferred any finding regarding
the younger claimant’s ability to perform past relevant
work and proceeded to Step 5 of the sequential evaluation of
7. The claimant was born on September 15, 1969, and was 40
years old, which is defined as a younger individual age
18–44, on the alleged disability onset date. The
claimant subsequently changed age category to a younger
individual age 45–49 (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the
determination of disability because applying the
Medical-Vocational Rules supports a finding of “not
disabled, ” whether or not the claimant has
transferable job skills ...