Jenkins v. Commissioner of the Social Security Administration
MEMORANDUM ORDER affirming the Commissioner's decision and dismissing pltf's complaint. Signed by Magistrate Judge Keith F. Giblin on 2/6/18. (tkd, )
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
COMMISSIONER OF THE SOCIAL
Plaintiff, Victoria Jenkins, requests judicial review of a final decision of the Commissioner
of Social Security Administration with respect to her application for disability-based benefits. In
accordance with the provisions of 28 § U.S.C. 636(c), the parties in this case have consented to
have a United States Magistrate Judge conduct all proceedings, including trial, entry of a final
judgment, and all post-judgment proceedings. The undersigned finds that the administrative law
judge=s decision lacks reversible error and is supported by substantial evidence. The administrative
law judge’s decision denying benefits is affirmed.
I. Judicial Review
Review of Social Security disability cases “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.” Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir.
2005) (citing Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994)); see generally 42 U.S.C. §
405(g) (describing and elaborating on the standard for judicial review of decisions of the
Commissioner of Social Security). Substantial evidence is “more than a mere scintilla and less
than a preponderance.” Perez, 415 F.3d at 461 (citation and internal quotation marks omitted). It
refers to “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. (internal citation and quotation marks omitted). In applying this standard, the
court “may not reweigh the evidence or substitute [its] judgment for the Commissioner’s.” Id.
(internal citation omitted). The court may affirm only on the grounds that the Commissioner stated
for his decision. Cole v. Barnhart, 288 F.3d 149, 151 (5th Cir. 2002) (per curiam).
In order to qualify for disability benefits, a claimant must suffer from a disability. See 42
U.S.C. § 423(d)(1)(A). The Social Security Act defines a disability as a “medically determinable
physical or mental impairment lasting at least twelve months that prevents the claimant from
engaging in substantial gainful activity.” Masterson v. Barnhart, 309 F.3d 267, 271 (5th Cir.
2002); see also 42 U.S.C. § 423(d)(1)(A). The Commissioner typically uses a sequential five-step
process to determine whether a claimant is disabled within the meaning of the Social Security Act.
20 C.F.R. § 404.1520; see also Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002). The analysis
First, the claimant must not be presently working. Second, a claimant must establish
that he has an impairment or combination of impairments which significantly limit
[his] physical or mental ability to do basic work activities. Third, to secure a finding
of disability without consideration of age, education, and work experience, a
claimant must establish that his impairment meets or equals an impairment in the
appendix to the regulations [“The Listings”]. Fourth, a claimant must establish that
his impairment prevents him from doing past relevant work. Finally, the burden
shifts to the Secretary to establish that the claimant can perform the relevant work.
If the Secretary meets this burden, the claimant must then prove that he cannot in
fact perform the work suggested.
See Waters, 276 F.3d at 718 (quoting Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991)); see
generally § 404.1520. The claimant bears the burden of proof with respect to the first four steps
of the five-step analysis. Waters, 276 F.3d at 718. If at any step the Commissioner finds that the
claimant is or is not disabled, the ALJ need not continue the analysis. Leggett v. Chater, 67 F.3d
558, 564 (5th Cir. 1995).
Reviewing courts give the Commissioner’s decisions great deference. Id. at 565-66.
Courts may not re-weigh evidence, try issues de novo, or substitute their judgments for those of
the Commissioner. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1995). A court cannot reverse
the Commissioner simply because the court might have decided the case differently in the first
instance. Elfer v. Texas Workforce Comm’n, 169 F. App’x 378, 380 (5th Cir. 2006); Ripley v.
Chater, 67 F.3d 552, 555 (5th Cir. 1995) (stating that the court may not “substitute [its] judgment
for that of the Secretary”). When the Commissioner fails to apply correct principles of law, or
when substantial evidence does not support the Commissioner’s decision, the governing statute
authorizes a reviewing court to enter, upon the pleadings and the transcript of the record, a
judgment modifying, or reversing the decision of the Commissioner of Social Security, with or
without remanding the cause for a rehearing. See 42 U.S.C. § 405(g). Thus, courts have the power
to remand for further administrative proceedings, or they may direct the Commissioner to award
benefits without a rehearing. Ordinarily, courts remand for further administrative proceedings to
address and cure deficiencies. See, e.g., Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000)
Victoria Jenkins is married and was 46 years old at the time of the hearing before the ALJ.
She has a high school education and has previously worked as a hairdresser, courtesy booth
cashier, an accounts payable clerk, and as an insurance sales representative. She suffers from
ulcerative colitis and testified that she has to use the restroom approximately 15 times during a 24
hour period. She complains that she is weak, tired, and fatigued. She has had a colostomy, which
has been reversed, but presently suffers from pouch ulcers. She complained that she cannot sleep
at night due to her having to use the bathroom numerous times. During the day, she mostly rests
and does light housework. She testified that she has difficulty walking because of pressure on her
rectum and because of stomach cramping. She can only walk for about 30 minutes and can only
sit for 15 minutes at a time before she is uncomfortable. Due to her condition, Jenkins protectively
applied for disability and Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”) on June 13, 2013 alleging disability beginning July 1, 2011 due to ulcerative
colitis. 1 (Tr. 12).
The agency denied Jenkin’s application initially and on reconsideration; thereafter she
requested an administrative hearing. (Tr. 12). Jenkins and her attorney, Trent Devenzio, attended
the administrative hearing in Beaumont, Texas before Administrative Law Daniel E. Whitney
(“ALJ Whitney”) on March 24, 2015. (Tr. 12).
ALJ Whitney utilized the five-step sequential evaluation process, discussed supra, in
deciding Jenkin’s disability claim. (Tr. 12 - 23). At steps one and two, the ALJ found that Jenkins
met the insured status requirements through March 31, 2013 and had not engaged in substantial
gainful activity since her alleged onset date. (Tr. 14).
At steps three and four, he found that
Jenkins had severe impairments which included: ulcerative colitis, diabetes, and dysthymic
disorder, but concluded that since the alleged onset date of disability, Jenkins has not had an
1. Social Security DIB are authorized by Title II of the Social Security Act and provide income to individuals who
are forced into involuntary, premature retirement, provided they are both insured and disabled, regardless of indigence.
See 42 U.S.C. § 423(c) (definition of insured status); 42 U.S.C. § 423(d) (definition of disability). In contrast, SSI
benefits are authorized by Title XVI of the Social Security Act and provide an additional resource to the aged, blind
and disabled to assure that their income does not fall below the poverty line. 20 C.F.R. § 416.110 (2015). Eligibility
for SSI is based on proof of disability and indigence. See 42 U.S. C. § 1382c(a)(3) (definition of disability); 42 U.S.C.
§§ 1382(a) (financial requirements). Although these are separate and distinct programs, applicants to both programs
must prove “disability” under the Act. See 42 U.S.C. § 423(d)(1)(A) (disability insurance); 42 U.S.C. § 1382(c)(3)(A)
(SSI). The law and regulations governing the determination of disability are the same for both programs. Greenspan
v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).
impairment that meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1. (Tr. 14 - 16).
Next, ALJ Whitney found that prior to September 1, 2014, the date that Jenkins became
disabled, she retained the residual functional capacity (“RFC”) to perform sedentary work, except
for: sitting for 6 hours; standing and walking no more than 2 hours; lifting up to 10 pounds
frequently; occasionally, climbing, but no climbing ladders, ropes or scaffolds, occasional
balancing, stooping, kneeling, crouching, and crawling; limited to simple and detailed but not
complex work; and, she would need ready access to a restroom. (Tr. 16 - 20). In making this
determination, ALJ Whitney concluded that Jenkin’s medically determinable impairments could
reasonably cause the alleged symptoms, but her statements concerning the intensity, persistence,
and limiting effects of the symptoms are not entirely credible prior to September 1, 2014, for the
reasons provided in the ALJ’s decision. (Tr. 17). Based on the residual functional capacity
compared with the physical and mental demands of the work, ALJ Whitney determined that
Jenkins could have performed past relevant work as an accounts payable clerk, and alternatively,
could have performed other jobs in the national economy prior to September 1, 2014. (Tr. 21 23). Accordingly, ALJ Whitney determined that Jenkins was not disabled during the relevant
period. (Tr. 23).
Looking at the period on and after September 1, 2014, the ALJ determined that Jenkins
had the RFC to perform sedentary work except that she would be limited to: sitting for 6 hours;
standing and walking no more than 2 hours; lifting up to 10 pounds frequently; occasionally
climbing, but no climbing ladders, ropes or scaffolds; occasional balancing, stooping, kneeling,
crouching and crawling; limited to simple and detailed work but not complex work; she would
need ready access to the restroom; and, would require eight to ten 15 minute breaks per day. (Tr.
20). The VE testified that the maximum amount of breaks during the day which would be available
for the type of work required by Jenkin’s RFC would be two, in addition to a lunch break. The
VE further testified that there were no jobs in the national economy which would allow a person
to take 8 to 10 fifteen minute restroom breaks during the course of the workday. Relying on the
testimony of the vocational expert, the ALJ found that beginning on September 1, 2014, there were
no jobs in the national economy that Jenkins could perform. (Tr. 23). Therefore, he found that
Jenkins was not disabled prior to September 1, 2014, but became disabled on that date and has
continued to be disabled through the date of his decision. In conclusion, the ALJ determined that
Jenkins was not under a disability within the meaning of the Social Security Act at any time
through March 31, 2013, the date of last insured.
Jenkins requested review of the administrative decision, however, the Appeals Council
declined review. (Tr. 1 - 6). Therefore, the ALJ’s decision serves as the Commissioner’s final
decision for purposes of judicial review pursuant to 42 U.S.C. § 405(g).
III. Legal Analysis
Issue One: Did substantial evidence support the ALJ’s decision that Jenkins was not
disabled prior to September 1, 2004?
Jenkins argues that there is no substantial evidence to support the ALJ’s conclusion that
she could work before March 31, 2013. She argues that her restroom usage was just as frequent
before March 31, 2013 as it was after the date of her disability as found by the ALJ (September 1,
2014). She notes that the VE testified that the maximum number of breaks that an employee can
take and still maintain employment is two and she contends that there is no substantial evidence
to support the ALJ’s finding that her bathroom usage before the date of last insured did not
preclude full employment. Jenkins also contends that the ALJ violated Social Security Ruling 96-
8p by failing to consider the effects of her bathroom usage on her ability to work prior to March
The Commissioner argues that substantial evidence supports the ALJ’s RFC
determination and that the ALJ properly found that the totality of the evidence did not support the
bathroom restriction as of March 31, 2013.
The Fifth Circuit has held that “substantial evidence” means less than a preponderance of
the evidence, but “more than a scintilla of evidence.” Anthony v. Sullivan, 954 F.2d 289, 295 (5th
Cir. 1992). The court must uphold the ALJ if the agency’s decision is supported by less than a
preponderance, even if the judge would have decided in favor of the claimant if the judge had the
right to draw his or her own factual conclusions. Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir.
1990). Simply put, the court must review the record, but may not reweigh the evidence nor
substitute its judgment for the Commissioner’s. Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir.
1988). Where substantial evidence supports the agency, the decision must be affirmed, even if
substantial evidence also supports the opposite conclusion. See Lopez v. Bowen, 806 F.2d 632,
634 (5th Cir. 1986).
As stated above, the ALJ concluded that the evidence of record did not support the extent
and the severity of Jenkins’ alleged limitations prior to September 1, 2014. Going through the
medical records, the ALJ noted that Jenkins received medical care in December 2011 for diabetes
and received regular care from her gastroenterologist. It was noted that her diarrhea, nausea and
cramping were persistent despite taking the medications prednisone and Asacol. However, the
ALJ noted that the records indicated that she started Remicade injections and had marked
improvement in November 2011. In January 2012, the ALJ noted that Jenkins reported having
only one to two formed stools per day with no abdominal pain, cramping or diarrhea. The records
indicated that she received care again in May 2012 and reported no abdominal pain or cramping.
The ALJ noted that although the treatment notes from May 2013 indicated she had five to six
bowel movements daily, by August 2013 the number of bowel movements were noted to be
reduced to two or three per day with none at night. The ALJ noted that the records indicated that
her gastrointestinal problems reported in February 2014 entailed only heartburn. In addition, after
her laparoscopic protectomy, the medical notes indicated that she has been making steady
progress; was experiencing a little drainage from the rectum; and was improving steadily. Further,
it was reported in May and June 2014 that that she was experiencing occasional brown discharge
but was otherwise doing well.
In conclusion, the ALJ found that Jenkins reported much less severe symptoms prior to
September 1, 2014 and then only periodically. The ALJ opined that the office visit notes reflect
numerous occasions where Jenkins did not allege the frequency of bowel movements mentioned
in the hearing and there were numerous office visits wherein Jenkins was reportedly doing well
and no related symptoms were reported. (Tr. 19). The ALJ noted that while Jenkins did in fact
have surgeries for the impairment, the surgeries were generally successful in relieving the
symptoms until September 2014 (after the date of last insured), whereupon she continued to have
difficulties after attempting treatment via medication. The ALJ further went on to note that the
record did not contain any opinions prior to September 1, 2014 from treating or examining
physicians indicating that Jenkins was disabled or had limitations greater that those determined in
This court acknowledges that Ms. Jenkin’s impairment has become severe and disabling at
the present time and she cannot keep and maintain employment. However, the issue to be decided
by this court is whether the ALJ’s determination of non-disability during the relevant time period
was supported by substantial evidence in the record. This court cannot not re-weigh the evidence
to come to an opposite conclusion. Therefore, this court finds that the ALJ’s determination was
supported by substantial evidence, as set forth above.
The court accordingly concludes that the Commissioner did not err in his decision denying
Jenkins’ application for disability benefits. The undersigned therefore affirms the Commissioner’s
decision and orders that Jenkins’ complaint be dismissed.
SIGNED this the 6th day of February, 2018.
KEITH F. GIBLIN
UNITED STATES MAGISTRATE JUDGE
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