Clark v. Astrue

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS, re: 21 Report and Recommendations. The objection 23 filed in this case by Plaintiff is overruled. Signed by District Judge Halil S. Ozerden on 6/12/15 (PKS)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DANIEL RAY CLARK

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VERSUS
MICHAEL ASTRUE,
Commissioner of Social Security

PLAINTIFF
Civil No 1:13cv116-HSO-RHW
DEFENDANT

ORDER OVERRULING OBJECTION, ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION, AND AFFIRMING DECISION OF
THE COMMISSIONER
BEFORE THE COURT is Plaintiff Daniel Ray Clark’s Objection [23] to the
Report and Recommendation [21] of United States Magistrate Judge Robert H.
Walker. After consideration of the Report and Recommendation, the Objection, the
record, and relevant legal authority, the Court finds that Plaintiff’s Objection [23]
should be overruled, the Report and Recommendation [21] should be adopted as the
findings of this Court, and the decision of Defendant Michael Astrue, as
Commissioner of the Social Security Administration, should be affirmed.
I. BACKGROUND
On January 26, 2010, Plaintiff filed an application for supplemental security
income (SSI) and disability insurance benefits, claiming that his disability began on
December 11, 2009. Report and Recommendation [21], at 1. The Social Security
Administration initially denied Plaintiff’s application on May 28, 2010, and
thereafter upheld the decision upon a request for reconsideration on August 16,
2010. Id. at 1–2. Plaintiff requested a hearing before an administrative law judge
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to review the decision. Id. at 2. On November 28, 2011, Administrative Law Judge
(ALJ) Charles C. Pearce conducted a hearing where Plaintiff was represented by
counsel. Id.
At the hearing, the ALJ received testimony from Plaintiff and a vocational
expert, and considered other evidence. Id. On December 9, 2011, the ALJ issued
his decision, concluding from the entire record that Plaintiff has the residual
functional capacity to perform light work with certain restrictions, and is not
disabled. Id. at 8. The Appeals Council denied Plaintiff’s request for review on
February 8, 2013, and Plaintiff filed this civil action seeking judicial review of the
Commissioner’s decision on April 11, 2013. Id. at 1, 8.
Following briefing by the parties, the Magistrate Judge issued a Report and
Recommendation [21], recommending that the decision of the Commissioner should
be affirmed. Id. at 12–13. The Magistrate Judge agreed with the reasoning of the
ALJ that Plaintiff’s claimed limitations associated with an inability to see out of his
left eye and a torn right shoulder rotator cuff did not render him disabled under the
relevant legal standards. Id. The Magistrate Judge determined that Plaintiff’s
primary complaints about the ALJ’s finding that Plaintiff was not wholly credible
was within the ALJ’s prerogative to make. Id.
Plaintiff submitted an Objection [23] to the Magistrate’s Report and
Recommendation, asserting that his eye and rotator cuff ailments satisfied the
duration requirement for disability, disputing the ALJ’s credibility determinations,
and maintaining that he is in need of eye and arm surgery, rendering him disabled.
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The Commissioner filed a Response [24] to the Objection urging that the Court
adopt the Magistrate’s Report and Recommendation.
II. DISCUSSION
A.

Standard of Review
Where an objection is made to a magistrate’s report and recommendation, the

Court is required to “make a de novo determination of those portions of the report or
specific proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1). When reviewing a final decision of the Commissioner, a court
may only consider whether the Commissioner applied the proper legal standards
and whether substantial evidence in the record supports the decision. Jones v.
Astrue, 691 F.3d 730, 733 (5th Cir. 2012). “Substantial evidence is that which is
relevant and sufficient for a reasonable mind to accept as adequate to support a
conclusion; it must be more than a scintilla, but it need not be a preponderance.”
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). A court may not re-weigh the
evidence or substitute its judgment for that of the Commissioner. Boyd v. Apfel, 239
F.3d 698, 704 (5th Cir. 2001). This Court must affirm the Commissioner’s decision
unless the Court finds that (1) the ALJ applied the incorrect legal standard, or (2)
the ALJ’s determination was not supported by substantial evidence. Id.
B.

Standard for Social Security Entitlement
In order to qualify for Social Security disability benefits, a claimant has the

burden of demonstrating that he or she has a “medically determinable physical or
mental impairment” that has lasted for at least twelve months, therefore
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preventing him or her from engaging in substantial gainful activity. 42 U.S.C. §
423(d)(1)(A). Substantial gainful activity is considered any work activity involving
significant physical or mental abilities for pay or profit. 20 C.F.R § 404.1572(a) and
(b). The Commissioner employs a five-step sequential process to evaluate claims of
disability and decides whether: (1) the claimant is not working in substantial
gainful activity; (2) the claimant has a severe impairment; (3) the claimant's
impairment meets or equals a listed impairment in Appendix 1 of the Regulations;
(4) the impairment prevents the claimant from doing past relevant work; and (5)
the impairment prevents the claimant from doing any other work. Newton v. Apfel,
209 F.3d 448, 453 (5th Cir. 2000) (citing 20 C.F.R. § 404.1520). The claimant bears
the burden of proving the first four steps. If the claimant succeeds in doing so, the
burden shifts to the Commissioner to establish the fifth step. Copeland v. Colvin,
771 F.3d 920, 923 (5th Cir. 2014).
C.

Plaintiff’s Objections
Plaintiff objects to the ALJ’s analysis at step three, whether Plaintiff’s

impairments meet or equal a listed impairment in the regulations and meet the
duration requirement. Objection [23], at 1. Plaintiff contends that his eye
impairment and his rotator cuff injury did not heal, satisfying the duration
requirement. Id. However, the ALJ did not reach the question of whether
Plaintiff’s impairments met the duration requirement, because none of Plaintiff’s
impairments were sufficient to make the preliminary showing that they equaled the
listed impairments in Appendix 1. ALJ Decision [15], at 17. Because the ALJ
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applied the proper legal standard, and his findings were supported by substanital
evidence in the record, Plaintiff’s Objection as to the analysis at step three will be
overruled. See Boyd, 239 F.3d at 704.
Plaintiff also appears to object to the ALJ’s finding that Plaintiff has
the residual functional capacity to perform light work . . . except he
cannot work where exposed to unprotected heights or hazardous
machinery, cannot climb ladders or scaffolds, can occasionally reach with
his dominant arm and balance, cannot work in a poorly lit work
environment, cannot operate a motor vehicle at night, and should not be
exposed to temperature extremes.
Objection [23], at 1; ALJ Decision [15], at 18. Because the ALJ concluded that
Plaintiff is unable to perform his past work, the ALJ considered whether Plaintiff is
able to perform any other work in light of his residual functional capacity. ALJ
Decision [15], at 20.
As part of this step in the sequential analysis, the ALJ evaluated Plaintiff’s
residual functional capacity, observing that Plaintiff had been self-employed as a
handyman since 2005, had served as an interim church pastor for nearly two years,
had attended bible college, watched TV, drove, and testified that he still worked as
a handyman painting and cleaning rental properties at the time of the hearing. Id.
at 18–19. The ALJ found that Plaintiff maintained “a level of activity that is
inconsistent with total disability” and concluded that Plaintiff had the residual
capacity to perform light work. Id. at 19. The ALJ’s conclusion was supported by
substantial evidence in the record, including Plaintiff’s own testimony concerning
his activities. See Jones, 691 F.3d at 733. Plaintiff’s objection on this point will be
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overruled.
Plaintiff further objects that he has not been able to find the types of jobs the
vocational expert indicated he could perform due to lack of available work and his
inability to pass a drug test because of the prescription medications he takes for
pain management. Objection [23], at 1. This objection is foreclosed by 20 C.F.R. §
404.1566(c). The Social Security Administration does not consider a lack of job
openings or inability to be hired for a job the applicant could otherwise perform
when it makes a determination of disability. 20 C.F.R. § 404.1566(c). Plaintiff’s
objection on this point will be overruled.
III. CONCLUSION
As required by 28 U.S.C. § 636(b)(1), the Court has conducted an independent
de novo review of the record and those matters raised in Plaintiff’s Objection. For
the foregoing reasons, the Court finds that Plaintiff’s Objection [23] should be
overruled. The Commissioner’s decision to deny Plaintiff’s claim for disability
benefits is supported by substantial evidence and comports with the relevant legal
standards, and should be affirmed.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Objection
[23] filed in this case by Plaintiff Daniel Ray Clark is OVERRULED, and the
Report and Recommendation [21] of Magistrate Judge Robert H. Walker,
recommending that the Court affirm the decision of the Social Security
Commissioner, is ADOPTED as the finding of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the decision of the
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Commissioner is AFFIRMED. A separate judgment will be entered in accordance
with this Order as required by Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 12th day of June, 2015.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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