White v. Astrue

Filing 16

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 1 Complaint filed by Maxcine White. Pursuant to the foregoing, the Court RECOMMENDS that the decision of the Administrative Law Judge be AFFIRMED. Signed by Magistrate Judge Don D. Bush on 6/1/2012. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
MAXCINE WHITE
V.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION

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CASE NO. 4:11cv113

REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Plaintiff brings this appeal under 42 U.S.C. § 405(g) for judicial review of a final decision
of the Commissioner denying his claim for Disability Insurance Benefits (“DIB”). After carefully
reviewing the briefs submitted by the parties, as well as the evidence contained in the administrative
record, the Court finds that the Commissioner’s decision should be AFFIRMED.
HISTORY OF THE CASE
Plaintiff protectively filed an application for Disability Insurance Benefits under Title II of
the Social Security Act on October 31, 2008, claiming entitlement to disability benefits due to
chronic lower back pain, arthritis, and mechanical back problems. Plaintiff’s application was denied
initially and on reconsideration. Pursuant to Plaintiff’s request, a hearing was held before an
Administrative Law Judge (ALJ) in Dallas, Texas on January 27, 2010. Plaintiff was represented
by counsel at the proceeding. At the hearing, Plaintiff, the ALJ’s medical expert, John R. Vorhies,
Jr., M.D., and the ALJ’s vocational expert, Talesia Beasley, testified.
On March 26, 2010, the ALJ denied Plaintiff’s claim, finding Plaintiff “not disabled.”
Plaintiff requested Appeals Council review, which the Appeals Council denied on January 11, 2011.
Therefore, the March 26, 2010 decision of the ALJ became the final decision of the Commissioner

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for purposes of judicial review under 42 U.S.C. § 405(g). See 20 C.F.R. § 404.981 (2005).
ADMINISTRATIVE LAW JUDGE'S FINDINGS
After considering the record, the ALJ made the prescribed sequential evaluation. The ALJ
made the following findings:
1.

The claimant last met the insured status requirements of the Social
Security Act on December 31, 2009.

2.

The claimant did not engage in substantial gainful activity during the
period from her alleged onset date of September 1, 2004, through her date
last insured of December 31, 2009 (20 C.F.R. 404.1571 et seq.).

3.

Through the date last insured, the claimant had the following severe
impairments: history of lumbar fusion on 2004 and hypertension (20
C.F.R. 404.1520(c)).

4.

Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R.
404.1520(d), 404.1525 and 404.1526).

5.

After careful consideration of the entire record, the undersigned finds that,
through the date last insured, the claimant had the residual functional
capacity to lift up to 20 pounds occasionally, 10 pounds frequently, sit 6
hours of an 8 hour workday, stand/walk 6 hours of an 8 hour workday, no
climbing ladders or ropes, occasional stooping, kneeling, crouching and
crawling as defined in 20 C.F.R. 404.1567(b).

6.

Through the date last insured, the claimant was capable of performing past
relevant work as a waitress. This work did not require the performance of
work-related activities precluded by the claimant’s residual functional
capacity (20 C.F.R. 404.1565).

7.

The claimant was not under a “disability,” as defined in the Social Security
Act, at any time from February 27, 2008, the amended alleged onset date,
through December 31, 2009, the date last insured (20 C.F.R. §
404.1520(f)).

(TR 18-23).

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STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision of no disability is limited to two
inquiries: whether the decision is supported by substantial evidence in the record, and whether the
proper legal standards were used in evaluating the evidence. Greenspan v. Shalala, 38 F.3d 232, 236
(5th Cir. 1994). If supported by substantial evidence, the Commissioner’s findings are conclusive
and must be affirmed. Richardson v. Perales, 402 U.S. 389, 390 (1971). Substantial evidence is
more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. Id. at 401. The Court may not reweigh the
evidence in the record, try the issues de novo, or substitute its judgment for that of the
Commissioner. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1995). A finding of no substantial
evidence is appropriate only if no credible evidentiary choices or medical findings exist to support
the decision. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). The Court is not to
substitute its judgment for that of the Commissioner, and reversal is permitted only “where there is
a conspicuous absence of credible choices or no contrary medical evidence.” ames v. Heckler, 707
F.2d 162, 164 (5th Cir. 1983).
The legal standard for determining disability under Titles II and XVI of the Act is whether
the claimant is unable to perform substantial gainful activity for at least twelve months because of
a medically determinable impairment. 42 U.S.C. §§ 423(d), 1382c(a)(3)(A); see also Cook v.
Heckler, 750 F.2d 391, 393 (5th Cir. 1985). In determining a capability to perform “substantial
gainful activity,” a five-step “sequential evaluation” is used, as described below.

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SEQUENTIAL EVALUATION PROCESS
Pursuant to the statutory provisions governing disability determinations, the Commissioner
has promulgated regulations that establish a five-step process to determine whether a claimant
suffers from a disability. 20 C.F.R. § 404.1520 (1987). First, a claimant who, at the time of his
disability claim, is engaged in substantial gainful employment is not disabled. 20 C.F.R. §
404.1520(b) (1987). Second, the claimant is not disabled if his alleged impairment is not severe,
without consideration of his residual functional capacity, age, education, or work experience.
20 C.F.R. § 404.1520(c) (1987). Third, if the alleged impairment is severe, the claimant is
considered disabled if his impairment corresponds to an impairment described in 20 C.F.R., Subpart
P, Appendix 1 (1987). 20 C.F.R. § 404.1520(d) (1987). Fourth, a claimant with a severe
impairment that does not correspond to a listed impairment is not considered to be disabled if he is
capable of performing his past work. 20 C.F.R. § 404.1520(e) (1987).
At the fifth step, it must be determined whether claimant could perform some work in the
national economy. A claimant who cannot return to his past work is not disabled if he has the
residual functional capacity to engage in work available in the national economy. 20 C.F.R. §
404.1529(f) (1987); 42 U.S.C. § 1382(a).
At this juncture, the burden shifts to the Commissioner to show that there are jobs existing
in the national economy which Plaintiff can perform, consistent with his medically determinable
impairments, functional limitations, age, education, and work experience. See Bowen v. Yuckert,
482 U.S. 137 (1987). Once the Commissioner finds that jobs in the national economy are available
to the claimant, the burden of proof shifts back to the claimant to rebut this finding. See Selders v.
Sullivan, 914 F.2d 614, 618 (5th Cir. 1990).

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In this case, a determination was made at the fourth step.
ANALYSIS
Plaintiff contends that the ALJ applied the wrong standard at Step 2 of the analysis. The
Commissioner all but agrees but then notes that sifting through the analysis cures any error. Twice
the ALJ cited to the standard and Stone v. Heckler, 752 F.2d 1099, 1104-05 (5th Cir. 1985). The
ALJ stated that “[a]n impairment or combination of impairments is ‘not severe’ when medical and
other evidence establish only a slight abnormality or a combination of slight abnormalities that
would have no more than a minimal effect on an individual’s ability to work. TR 17. The ALJ
followed the language of the 20 C.F.R. Section 404.1520 (c). Contrary to Plaintiff’s argument, the
Fifth Circuit has also cited this exact language in a recent opinion in holding that the ALJ followed
the correct analysis.
“An impairment is severe if it significantly limits an individual’s physical or mental abilities
to do basic work activities; it is not severe if it is a slight abnormality or combination of slight
abnormalities that has no more than a minimal effect on the claimant's ability to do basic work
activities.” Brunson v. Astrue, 387 Fed. Appx. 459 (5th Cir. 2010) (internal citation omitted). True,
the Stone analysis emphasizes the effect on the individual rather than the effect on the ability to
work. But the Court finds that this is a matter of semantics which, in common sense reasoning,
means the same the thing. Although the Brunson decision is unpublished, it does provide some
insight into how the Circuit views the standard, the same as quoted by the ALJ.
In any event, procedural error does not require reversal and remand unless the substantial
rights of a party have been affected. See Anderson v. Sullivan, 887 F.2d 630,634 (5th Cir. 1989).
All of Plaintiff’s complaints as to severity or non-severity of her impairments center on her view that

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the ALJ followed an incorrect legal standard, and, as such, the case must be remanded. However,
as shown by the Fifth Circuit’s language in the Brunson case, the ALJ applied the proper standard
as recognized in this Circuit. Plaintiff’s first point of error is overruled.
Next, Plaintiff argues that the ALJ’s credibility findings are not supported by substantial
evidence. Basically, Plaintiff argues that the ALJ’s credibility findings are just “boilerplate”
conclusions entitled to no deference. The ALJ’s decision on the severity of pain is entitled to
considerable judicial deference. See James v. Bowen, 793 F.2d 702,706 (5th Cir. 1986). An ALJ's
unfavorable credibility evaluation of a claimant's allegations will not be upheld on judicial review
only where the uncontroverted medical evidence shows a basis for a claimant’s complaints and the
ALJ does not articulate a basis for discrediting the claimant’s subjective complaints of pain by
weighing the objective medical evidence. See Cook v. Heckler, 750 F.2d 391, 392 (5th Cir.1985).
Those circumstances are not present here.
As to Plaintiff’s RFC, the ALJ gave his reasons. He noted the opinion of the testifying ME
and also the examination performed by Dr. Rowley (Exhibit 7F) which he noted indicated that
Plaintiff’s allegations were not fully supported by the record. The limitations noted by Dr. Rowley
are the same as those noted by the ALJ. There was substantial evidence to support his RFC finding.
Plaintiff’s second point of error is overruled.
RECOMMENDATION
Pursuant to the foregoing, the Court RECOMMENDS that the decision of the Administrative
Law Judge be AFFIRMED.
Failure to file written objections to the proposed findings and recommendations contained
in this report within fourteen days shall bar an aggrieved party from attacking the factual findings

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on appeal. Thomas v. Arn, 474 U.S. 140, 106 (1985); Nettles v. Wainwright, 677 F.2d 404, 408 (5th
Cir. 1982) (en banc).
SIGNED this 1st day of June, 2012.
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DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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