James v. Astrue
Filing
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RULING and CONSENT JUDGMENT regarding 1 Complaint filed by Natiara James. The decision of the Commissioner denying DIB benefits will be affirmed, and the complaint of Natiara James will be DISMISSED with prejudice. Signed by Magistrate Judge Docia L Dalby on September 18, 2012. (SR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
NATIARA JAMES
CIVIL ACTION
VERSUS
NUMBER: 11-484-DLD
MICHAEL J. ASTRUE, Commissioner
of Social Security
CONSENT CASE
RULING
Plaintiff seeks judicial review of a final decision of the Commissioner denying her
claim for disability insurance benefits. In making that final decision, the Commissioner
reached the fifth and final step of the five-step sequential disability analysis set forth in 20
C.F.R. § 404.1520(b)-(f)& § 416.920(b)-(f).1 The Commissioner determined that plaintiff had
severe impairments of depression and anxiety and that these impairments prevented
plaintiff from performing her past relevant work as a cashier and fast food worker. (TR 25,
27) The Commissioner also determined, however, that the claimant had the residual
functional capacity to perform a full range of work at all exertional levels but with the
following nonexertional limitations: “limited contact with public workers and can perform
simple one-two step tasks.” (TR 27)
In reaching this decision, the ALJ considered the medical evidence, the testimony
of the claimant, and the VE testimony in finding that plaintiff would be able to perform the
requirements of representative occupations such as housekeeper/cleaner, dishwasher, and
food prep worker. (TR 29) Pursuant to SSR 00-04p, the ALJ found that the VE testimony
was consistent with the information contained within the Dictionary of Occupational Titles
("DOT"). Id. Also, after considering the evidence, the ALJ found that the plaintiff's
1
See, e.g., Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988).
medically determinable impairments could reasonably be expected to produce the alleged
symptoms, but that the plaintiff's statements concerning the intensity, persistence and
limiting effects of these symptoms were not credible to the extent they were inconsistent
with the RFC. (TR 28) Thereafter, following consideration of the testimony of an impartial
vocational expert, and relying on the medical-vocational guidelines as a framework for
decision, the Commissioner determined that plaintiff was not disabled within the meaning
of the Social Security Act.
Background
Plaintiff protectively filed an application for disability benefits on July 14, 2008 (TR
101-102), alleging an amended disability onset date of October 1, 2007 (TR 38),2 due to
“mental depression and anxiety, broken ankle” and “right shoulder,” conditions which limited
her ability to work because she sometimes cannot concentrate, is on medication, and she
is unable to get up in the mornings. (TR 130) The claim was initially denied on September
17, 2008. Plaintiff filed a timely request for hearing; a hearing was held on November 12,
2009; and an unfavorable decision was rendered on February 19, 2010 (TR 23-30), finding
that plaintiff was not disabled from January 1, 2002, plaintiff's original alleged onset date,
through December 31, 2007, the date last insured. (TR 30) On the date last insured,
December 31, 2007, plaintiff was 37 years old, had a limited education, and was able to
communicate in English. (TR 28-29) Plaintiff appealed the ALJ’s decision, and the Appeals
2
Plaintiff's original onset date was January 1, 2002. During the administrative hearing, counsel for
plaintiff amended the onset date to October 1, 2007, for procedural reasons.
2
Council declined to review the ALJ’s decision, making the ALJ’s decision the final decision
of the Commissioner.
In this appeal, plaintiff contends that the ALJ's assessment of her mental RFC is
unsupported by substantial evidence, and the ALJ committed reversible error by neglecting
to make specific findings regarding sustainability of employment.
ISSUE
The issue before this Court is whether the Commissioner’s finding that plaintiff was
not disabled for the period October 1, 2007, through the date last insured3, is supported by
the substantial evidence and was reached by applying the proper legal standards. 42
U.S.C. § 405(g).
GOVERNING LAW
The Social Security Act provides for the payment of benefits to persons who have
contributed to the program and "who suffer from a physical or mental disability." Loza v.
Apfel, 219 F.3d 378, 390 (5th Cir. 2000), citing 42 U.S.C. § 423(a)(1)(D)(1991). As used
in the Act, the term "disability" is defined as the inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment that can be
expected to result in death or that has lasted or can be expected to last for a continuous
period not less than twelve months. Id., citing 42 U.S.C. § 423(d)(1)(A); Bowen v. Yuckert,
482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); Anthony v. Sullivan, 954 F.2d
289, 292 (5th Cir. 1987).
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Here, plaintiff filed for disability benefits only, and her insured status for these benefits only extended
through December 31, 2007, otherwise known as her "date last insured." Therefore, plaintiff has to establish
that her combination of impairments rendered her disabled on or before that date.
3
In reviewing the Commissioner's decision to deny benefits, the Court is limited to a
determination of whether the Commissioner's decision was supported by substantial
evidence existing in the record as a whole and whether the Commissioner applied the
proper legal standards. E.g., Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988). In
applying the "substantial evidence" standard, the Court must carefully scrutinize the record
to determine if, in fact, substantial evidence supporting the decision does exist, but the
Court may not reweigh the evidence in the record, nor try the issues de novo, nor substitute
its judgment for the Commissioner's even if the evidence preponderates against the
Commissioner's decision. Id. Substantial evidence means more than a scintilla, but less
than a preponderance, and is such relevant evidence as a reasonable mind might accept
to support a conclusion. Id. A finding of "no substantial evidence" will be made only where
there is a conspicuous absence of credible choices or an absence of medical evidence
contrary to the claimant's position. Id.
However, the substantial evidence standard of review is not a mere rubber stamp
for the Commissioner’s decision, and it involves more than a search for evidence
supporting the Commissioner’s findings. Cook v. Heckler, 750 F.2d 391, 393 (5th Cir.
1985). The Court must scrutinize the record and take into account whatever fairly detracts
from the substantiality of evidence supporting the Commissioner’s findings. Id.
To determine whether a disability exists for purposes of the Act, the Commissioner
must weigh the following elements of proof: (1) objective medical facts; (2) diagnoses and
opinions of treating and examining physicians; (3) the claimant’s subjective evidence of
pain and disability; and (4) the claimant’s age, education, and work history. Wren v.
Sullivan, 925 F.2d 123, 126 (5th Cir. 1991).
4
At steps one through four of the five-step sequential analysis, the overall burden of
proving disability under the Social Security Act rests on the claimant. Jones v. Heckler, 702
F.2d 616, 620 (5th Cir. 1985). The determination of a claimant’s residual functional capacity
(“RFC”) between steps three4 and four is exclusively reserved for the Commissioner rather
than for the claimant’s physicians. If a claimant proves that he no longer is able to work
in his prior job, then the burden shifts to the Commissioner to show that there is some other
type of substantial gainful activity that the claimant can perform. Id. Thus, in cases such
as this one where the Commissioner determines that the claimant cannot perform his past
relevant work and accordingly reaches the fifth step of the five-step disability sequential
analysis,5 the Commissioner bears the burden of establishing that there is other work in the
economy that the claimant can perform. Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir.
1999). If the Commissioner adequately points to potential alternative employment, the
ultimate burden of persuasion then returns to the claimant to prove his inability to perform
those jobs. Id.; Kraemer v. Sullivan, 885 F.2d 206 (5th Cir. 1989).
4
Listing impairments are descriptions of various physical and mental illnesses and abnormalities
generally characterized by the body system they affect. Each impairment is defined in terms of several specific
medical signs, symptoms, or laboratory test results. At the third step, for a claimant to show that his
impairment matches a Listing he must demonstrate that it meets all of the medical criteria specified in the
listing. An impairment that exhibits only some of the criteria, no matter how severely, does not qualify. Sullivan
v. Zebley, 493 U.S. 521, 529–32, 110 S.Ct. 885, 891–92, 107 L.Ed.2d 967 (1990); 20 C.F.R. § 404.1525.
5
The Commissioner uses a five-step sequential analysis to determine whether a claimant is disabled:
(1) whether the claimant is currently engaged in substantial gainful activity (i.e., whether the claimant is
working); (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or
equals the severity of an impairment listed in 20 C.F.R., Part 404, Subpart B, Appendix 1; (4) whether the
impairment prevents the claimant from doing past relevant work (i.e., whether the claimant can return to his
old job); and (5) whether the impairment prevents the claimant from doing any other work. Perez v. Barnhart,
415 F.3d 457, 461(5th Cir.2005); Masterson v. Barnhart, 309 F.3d 267,271-72 (5th Cir.2002); Newton v. Apfel,
209 F.3d 448, 453 (5th Cir.2000). See, also, 20 C.F.R. § 404.1520.
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DISCUSSION AND ANALYSIS
Plaintiff argues that she presented substantial evidence of a chronic mental
impairment (depression and anxiety) which prevents her from sustaining continuous
employment, and therefore the ALJ's decision should have included a specific
determination regarding plaintiff's ability to sustain employment for a “significant amount
of time.” (rec.doc. 13-1) Plaintiff contends that the ALJ's failure to make this specific
determination is legal error, and cites to Singletary v. Bowen, 798 f. 2d 818, 822 (5th Cir.
1986) in support of her contention; however, plaintiff also acknowledges that the ALJ need
not make specific findings regarding sustainability of employment unless there is “evidence
that a claimant's ability to maintain employment would be compromised.” Dunbar v.
Barnhart, 330 F.3d 670, 672 (5th Cir. 2003). Id.
The court notes that the Fifth Circuit narrowed Singletary, holding that the ALJ is not
always required to make a specific finding regarding the claimant's ability to maintain
employment in every case. Frank v. Barnhart, 326 F.3d 618, 619 (5th Cir.2003). Rather,
specific findings regarding the claimant's ability to maintain employment are required only
in “situation[s] in which, by its nature, the claimant's physical ailment waxes and wanes in
its manifestation of disabling symptoms.” Id. (citing Watson v. Barnhart, 288 F.3d 212 (5th
Cir.2002)) (emphasis added). If the claimant does not make such a showing, the “claimant's
ability to maintain employment is subsumed in the RFC determination.” Perez v. Barnhart,
415 F.3d 457, 465 (5th Cir.2005) (citing Frank, 326 F.3d at 618).
Thus, in order to trigger specific findings regarding the sustainability of employment,
plaintiff must set forth evidence of two factors: 1) that her ability to sustain employment is
compromised by her depression and/or anxiety symptoms; and 2) her condition, by its very
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nature, waxes and wanes in its manifestation of disabling symptoms. Also, plaintiff cannot
support her claim with conclusory statements; she must submit medical or other evidence
to support her claim. See 20 C.R.R. §§ 404.1512(a), 416.912(a).
In a disability benefits case, the only relevant dates are for the time period between
the alleged onset date of disability and the date last insured. See, e.g., Williams v. Astrue,
2007 WL 2727122, *4 (W.D.Tex. 2007) For plaintiff, this means the relevant time period is
between October 1, 2007, and December 31, 2007. At the outset, the court notes that while
most of the medical evidence discussed by the ALJ, plaintiff, and defendant concerns
plaintiff's medical condition as it existed after the date last insured, at issue here for
purposes of appeal is only that medical evidence between October 1, 2007, and December
31, 2007. Between October 1, 2007, and December 31, 2007, plaintiff had just three visits
to either a psychiatrist or a social worker before her insured status expired. In those three
visits, she reported crying spells, mood swings, irritability, and forgetfulness. (rec.doc. 131, pg. 2)
A review of the ALJ's decision reflects that he discussed the plaintiff’s condition both
before and after the insured period. He first discussed the period leading up to the insured
period of October 1, 2007 through December 31, 2007, when he noted that plaintiff began
treatment with the Baton Rouge Mental Health Center (“BRMHC”) in 2001 for symptoms
of mood swings, irritability, and poor sleep habits, and she also reported having a disruptive
home environment with corresponding impaired concentration and forgetfulness. The ALJ
also commented that on January 25, 2007, which is still before the operative dates,
BRMHC noted that plaintiff had been non-compliant with her medication; plaintiff was not
sleeping, seeing things, had rapid cycling moods, and had suicidal thoughts in addition to
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irritability and crying spells. However, notably, by August 9, 2007, almost two months
before the alleged onset date of disability, plaintiff was no longer having auditory or visual
hallucinations, or any manic episodes. The ALJ specifically noted that plaintiff had been
inconsistent in keeping doctor's appointments and taking her medications as prescribed;
and he pointed out that plaintiff's medications, when taken consistently, historically
provided relief for her anxiety and depression. (TR 25-26).
Moreover, while plaintiff makes the conclusory statement that her ability to maintain
employment was compromised, she has not put forth any evidence in support of that
contention that applies during the relevant time period. It is not enough that she have ups
and downs, those “downs” must be disabling to the point of rendering her not able to
sustain employment. For example, an incapacity or periodic “down period” whose severity
caused her to miss work on a regular basis would show an inability to maintain
employment, even though she had days when she could work. A review of the evidence,
however, whether during the relevant time period or prior to the relevant time period, shows
that it does not reflect any opinion or suggestion that plaintiff's ability to maintain any
employment was compromised by her depression and/or anxiety symptoms. Plaintiff has
not cited to any medical or other evidence that her symptoms affected her ability for
sustained employment. As the ALJ discussed, the evidence instead, in conjunction with
the RFC, established limitations on the kinds of employment she could perform. Thus,
under either Singletary or Dunbar, the ALJ was not required to make a specific finding
regarding her ability to sustain employment.
Moreover, even assuming arguendo that plaintiff had provided some evidence that
her ability to maintain employment was compromised, Frank narrowed Singletary to the
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extent that a specific finding on plaintiff's ability to maintain employment was required only
in situations where the condition, by its very nature, waxes and wanes. Plaintiff has cited
to no cases where simply having a diagnosis of depression and/or anxiety equates to
having a condition that waxes and wanes by its very nature. While it may be true that in
some cases a claimant's depression and anxiety waxes and wanes, and may even result
in a finding of disability, it is plaintiff's burden to set forth evidence that her depression and
anxiety does so. Here, the evidence shows that plaintiff reported nearly the same or similar
symptoms consistently, and that her symptoms worsened when she was non-complaint
with her recommended treatment or medications. None of these records make any
statement that any of plaintiff's disabling symptoms of mental impairments wax and wane,
or that she can work—but only for short spans of time. Thus, the ALJ was not required
under Frank to make a specific finding on sustainability because plaintiff put forth no
evidence that her condition waxed and waned during the relevant time period.
Finally, the court notes that the remaining evidence cited by plaintiff concerns some
18 visits occurring after the expiration of her insured status. Unfortunately, evidence
showing a degeneration of a claimant's condition after the expiration of her Title II insured
status is not relevant to the Commissioner's Title II disability analysis in this case. See
Torres v. Shalala, 48 F.3d 887, 894 n. 12 (5th Cir.1995). That she may or may not
subsequently have become disabled does not mean that she was disabled for purposes
of the instant matter.
Thus, it is clear that none of the evidence during the relevant time period
establishes the severity or frequency of plaintiff's symptoms, or the waxing and waning of
such symptoms, which would trigger a separate inquiry by the ALJ of plaintiff's ability to
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sustain gainful employment pursuant to Singletary, Dunbar, or Frank. As plaintiff did not
meet her burden of proof that her ability to maintain employment was compromised, or that
her ailment waxes and wanes in its manifestation of disabling symptoms, her ability to
maintain employment is subsumed in the RFC determination. Perez, at 465.
Substantial evidence therefore supports the ALJ's determination that plaintiff could
perform the full range of work with certain non-exertional limitations. Therefore, although
the ALJ did not reach a result that was favorable to the plaintiff, his determination was well
reasoned and supported by the substantial evidence in the record and was reached using
the proper legal standard.
CONCLUSION
Accordingly, for the reasons assigned, the decision of the Commissioner denying
DIB benefits will be affirmed, and the complaint of Natiara James will be DISMISSED, with
prejudice.
Signed in Baton Rouge, Louisiana, on September 18, 2012.
MAGISTRATE JUDGE DOCIA L. DALBY
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
NATIARA JAMES
CIVIL ACTION
VERSUS
NUMBER 11-484-DLD
MICHAEL J. ASTRUE, Commissioner
of Social Security
CONSENT CASE
FINAL JUDGMENT
In accordance with written reasons assigned this date,
IT IS ORDERED, ADJUDGED AND DECREED that the decision of the
Commissioner denying benefits shall be and hereby is AFFIRMED and that plaintiff’s
complaint hereby is DISMISSED, with prejudice.
Signed in Baton Rouge, Louisiana, on September 18, 2012.
MAGISTRATE JUDGE DOCIA L. DALBY
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