United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
FRANCES H. STACY, UNITED STATES MAGISTRATE JUDGE.
the Magistrate Judge in this Social Security appeal is
Defendant's Motion for Summary Judgment (Document No.
13), Plaintiffs Response (Document No. 18), Plaintiffs Motion
for Summary Judgment (Document No. 15), and Defendant's
Response there to (Document No. 17). After considering the
cross Motion for Summary Judgment and the applicable law,
Magistrate Judge orders that Defendant's Motion for
Summary Judgment is DENIED, Plaintiffs Motion for Summary
Judgment is GRANTED, and decision is REMANDED for further
Lauri Denee Miller ("Miller") filed a claim for
supplemental security income benefits on May 12, 2016, under
title XVI of the Social Security Act, alleging disability
onset date of February 1, 2009, due to herniated discs in her
back, epilepsy, migraines, bleeding ulcers, severe mental
problems, post-traumatic stress disorder, bipolar disorder,
and Crohn's disease. Doc. 16 at 1. The claim was
initially denied on November 10, 2016, and upon
reconsideration on January 25, 2017. Miller then filed a
written request for a hearing in front of an ALJ on March 2,
2017. Tr. 10. The hearing took place on October 19, 2017 and
the ALJ issued a decision on December 1, 2017, finding that
Miller was not disabled within the meaning of the Social
Security Act. Id. at 10, 18. On February 16, 2018,
the Appeals Council denied review, making the ALJ's
decision the Commissioner's final agency decision. Tr.
1-4. Miller then filed this appeal pursuant to 42 U.S.C.
financially needy individual who is disabled, aged, or blind
may apply for supplemental security income benefits under
Title XVI regardless of their insured status. 42 U.S.C.
§ 1382(a). Section 405(g) of the Act governs the
standard of review for social security disability cases. This
court's review of a Commissioner's decision "is
limited to two inquiries: (1) whether the decision is
supported by substantial evidence on the record as a whole,
and (2) whether the Commissioner applied the proper legal
standard." Copeland v. Colvin, 771 F.3d 920,
923 (5th Cir. 2014). "If the Commissioner's findings
are supported by substantial evidence, they must be
affirmed." Newton v. Apfel, 209 F.3d 448, 452
(5th Cir. 2000). Additionally, "an ALJ's factual
findings are 'conclusive' if supported by
'substantial evidence.'" Biestek v.
Berryhill, 139 S.Ct. 1148, 1149 (2019).
evidence, "means-and means only- "such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion." Id. at 1154. Substantial
evidence "is more than a mere scintilla and less than a
preponderance." Masterson v. Barnhart, 309 F.3d
267, (5th Cir. 2002). This court "will not re-weigh the
evidence, try the questions de novo, or substitute our
judgment for the Commissioner's, even if we believe the
evidence weighs against the Commissioner's
decision." Id. at 272. "Conflicts in the
evidence are for the Commissioner to resolve, not the
courts." Id. "A finding of no substantial
evidence is appropriate only if no credible evidentiary
choices or medical findings support the decision."
Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001)
claimant is found to be disabled when, "she is unable
'to engage in any substantial gainful activity by reason
of [a] medically determinable physical or mental
impairment... which has lasted or can be expected to last for
a continuous period of not less than 12 months.'"
Graves v. Colvin, 837 F.3d 589, 592 (5th Cir. 2016).
The existence of such a disability must be demonstrated by,
"medically acceptable clinical and laboratory diagnostic
findings." 42 U.S.C. § 423(d)(3), (d)(5). The ALJ
uses a sequential five-step analysis to determine if a
claimant is disabled:
(1) whether the claimant is presently performing substantial
(2) whether the claimant has a severe impairment;
(3) whether the impairment meets or equals a listed
(4) whether the impairment prevents the claimant from doing
past relevant work; and
(5) whether the impairment prevents the claimant from
performing any other substantially gainful activity.
Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir.
2018). "The claimant bears the burden of proof on the
first four steps, but the Commissioner bears the burden on
the fifth step." Id. "A finding that a
claimant is disabled or is not disabled at any point in the
five-step review is conclusive and terminates the
analysis." Lovelace v. Bowen, 813 F.2d 55, 58
(5th Cir. 1987).
the first step, "substantial" activity means,
"work activity that involves doing significant physical
or mental activities." 20 C.F.R. § 416.972.
"Gainful" activity is, "work activity that you
do for pay or profit." Id. If the ALJ finds
that the "... individual ... is working and engaging in
substantial gainful activity will not be found disabled
regardless of the medical findings." Wren v.
Sullivan, 925 F.2d 123, 125 (5th Cir. 1991); 20 C.F.R.
§§ 404.1520(b), 416.920(b) (1989).
second step, to be "severe" means an impairment or
combination of impairments must significantly limit the
individuals physical or mental ability to do basic work
activities. 20 C.F.R. § 416.920. Under Fifth Circuit
binding precedent, "[a]n impairment can be considered as
not severe only if it is a slight abnormality having such
minimal effect on the individual that it would not be
expected to interfere with the individual's ability to
work, irrespective of age, education or work
experience." Salmond, 892 F.3d at 817 (quoting
Loza v. Apfel, 219 F.3d 378, 391 (5th Cir. 2000)).
"Re-stated, an impairment is severe if it is anything
more than a "slight abnormality" that "would
not be expected to interfere" with a claimant's
ability to work." Salmond, 892 F.3d at 817.
This step requires the claimant to make a de minimus
showing. Id. If the ALJ finds that the claimant does
not "have any impairment or combination of impairments
which significantly limits [their] physical or mental ability
to do basic work activities, [the ALJ] will find that [the
claimant] [does] not have a severe impairment and are,
therefore, not disabled." 20 C.F.R. § 416.920(c).
ALJ finds the existence of a severe impairment under step
two, the ALJ moves on to step three of the analysis. Under
step three, the ALJ will determine whether the impairment or
combination of impairments meets or medically equals one or
more of the listings in Appendix 1 of 20 C.F.R. § 404
Subpart P. "If [the claimant] [has] an impairment(s)
which meets the duration requirement and is listed in
appendix 1 or is equal to a listed impairment(s), [the ALJ]
will find [the claimant] disabled without considering your
age, education, and work experience. 20 C.F.R. §
416.920(d). If the ALJ finds that". .. [the claimant]
does not meet or equal a listed impairment, [the ALJ] will
assess and make a finding about [the claimant's] residual
functional capacity [(RFC)] based on all the relevant medical
and other evidence in [the] case record ..."
will use the RFC assessment under step four to determine
whether the claimant can perform their past relevant work. 20
C.F.R. § 416.920(e). "The RFC is the
individual's ability to do physical and mental tasks on a
sustained basis despite limitations from her impairments. In
determining the RFC, the [ALJ] must consider all of a
claimant's impairments, including those that are not
severe." Giles v. Astrue, 433 Fed.Appx. 241,
245 (5th Cir. 2011). "[The ALJ] will assess [the
claimant's] residual functional capacity based on all the
relevant evidence in [the claimant's] case record"
as well as all impairments found to be supported by the
record. 20 C.F.R. 404.1545(a)(1). "If an individual is
capable of performing the work he has done in the past, a
finding of "not disabled" must be made."
Wren, 925 F.2d at 125.
claimant meets their burden of proving she is not currently
working and is incapable of performing past relevant work,
the burden shifts to the ALJ for step five. If the ALJ finds
that the claimant's impairment keeps them from performing
their past work, the ALJ will consider [the] assessment of
[the claimant's] residual functional capacity... age,
education, and work experience to see if [the claimant] can
make an adjustment to other work [existing in the national
determine whether substantial evidence supports the ALJ's
decision, the court weighs four factors: (1) objective
medical facts; (2) diagnosis and opinions of treating and
examining physicians; (3) claimants' subjective evidence
of pain and disability; and (4) claimants age, education, and
work history. Wren, 925 F.2d at 126.
raises two issues on appeal. First, that the ALJ failed to
weigh the opinion of the consultative examiner. Second, that
failure of the ALJ resulted in an RFC that is ...