Cahill v. Commissioner, SSA

Filing 16

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 1 Complaint filed by Jeremy D Cahill. 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 8/27/2015. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
JEREMY DANIEL CAHILL
V.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION

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CASE NO. 4:14-CV-00228

REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
The 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 Supplemental Security Income disability benefits
under Title II and Title XVI of the Social Security Act on November 3, 2011, claiming entitlement
to disability benefits due to depression and anxiety disorder . Plaintiff’s application was denied
initially on February 14, 2012, and on reconsideration on April 16, 2012. Pursuant to Plaintiff’s
request, a hearing was held before an Administrative Law Judge (ALJ) in Dallas, Texas on
November 7, 2012. Plaintiff was represented by counsel at the proceeding. At the hearing, Plaintiff
and the ALJ’s vocational expert, Suzette Skinner, testified.
On February 11, 2013, the ALJ denied Plaintiff’s claim, finding Plaintiff “not disabled.”
Plaintiff requested Appeals Council review, which the Appeals Council denied on February 7, 2014.
Therefore, the February 11, 2013 decision of the ALJ became the final decision of the Commissioner
for purposes of judicial review under 42 U.S.C. § 405(g). See 20 C.F.R. § 404.981 (2005).
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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 meets the insured status requirements of the Social Security
Act through December 31, 2015.

2.

The claimant has not engaged in substantial gainful activity since October
8, 2011, the alleged onset date (20 C.F.R. 404.1571 et seq., and 416.971
et seq.).

3.

The claimant has the following severe impairments: depression and
anxiety disorder (20 C.F.R. 404.1520(c) and 416.920(c)).

4.

The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of 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,
404.1526, 416.920(d), 416.925 and 416.926).

5.

After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform a full range of
work at all exertion levels but with the following nonexertional
limitations: The claimant has the ability to understand, remember, and
carry out only simple instructions, attend and concentrate for 2 hours at a
time, interact adequately with coworkers and supervisors, and respond
appropriately to changes in routine work settings.

6.

The claimant is capable of performing past relevant work as a Price
Marker (DOT#209.587-034/SVP 2/light) and Roustabout (DOT#939.687018/SVP 1/very heavy). This work does not require the performance of
work related activities precluded by the claimant’s residual functional
capacity (20 C.F.R. 404.1565 and 416.965).

7.

The claimant has not been under a disability, as defined in the Social
Security Act, from October 8, 2011, through the date of this decision (20
C.F.R. 404.1520(f) and 416.920(f)).

(Tr. 11-18).

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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.” Hames 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 (and alternatively at the fifth step).
ANALYSIS
Plaintiff brings several points of error primarily focusing on the ALJ’s failure to recognize
in his opinion that Plaintiff had a paranoid personalty disorder which should have been evaluated as
a severe impairment. Plaintiff also challenges the ALJ’s finding that Plaintiff did not meet the
C criteria on the severe impairments found and that the ALJ did not consider Plaintiff’s social
functioning in determining his RFC. Plaintiff also faults the ALJ in adopting the RFC of the State
Agency medical consultant.
According to Plaintiff’s brief, Plaintiff walks 300 steps to his mailbox, and if he goes farther
than 300 steps, he starts throwing up; he always has mirrors around him so he can see if someone
is following him; he thinks his son follows him with a knife; he and he and his cat frequently dive
under a table if some perceived danger occurs, and he is constantly followed by “Jack” who no one
other than the Plaintiff can see.
When questioned by Plaintiff’s counsel, Plaintiff’s wife stated that Plaintiff spent most of
the day on his computer and cooking (Tr. 49). She stated that both she and her husband check the
locks on the doors regularly (Tr. 50). She also testified that many of the security precautions were
undertaken not only to keep people from looking in or coming in but also to keep their autistic child
in the apartment (Tr. 51). She also testified that Plaintiff has mirrors all over the house (Tr. 51). She
says Plaintiff has jumped under chairs when there is a loud noise, and on other occasions she was
not sure why he jumped under chairs (Tr. 54).
At step two of the sequential evaluation process, the ALJ “must consider the medical severity
of [the claimant’s] impairments.” 20 C.F.R. § 404.1520(a)(4)(ii),(c) (2012). To comply with this
regulation, the ALJ “must determine whether any identified impairments are ‘severe’ or ‘not
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severe.’” Herrera v. Camber of Soc. Sec., 406 F. App’x 899, 903 (5th Cir. 2010). Pursuant to the
Commissioner’s regulations, a severe impairment is “any impairment or combination of impairments
which significantly limits [a claimant’s] physical or mental ability to do basic work activities.”
20 C.F.R. § 404.1520(c).
The Fifth Circuit has held that an impairment is 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.” Stone v. Heckler, 752 F.2d 1099, 1101, 1104–05 (5th Cir. 1985).
Accordingly, to meet the severity threshold at step two, “the claimant need only ... make a de minimis
showing that her impairment is severe enough to interfere with her ability to do work.” Anthony v.
Sullivan, 954 F.2d 289, 294 n. 5 (5th Cir. 1992) (citation omitted). “Because a determination [of]
whether an impairment[ ] is severe requires an assessment of the functionally limiting effects of an
impairment[ ], [all] symptom-related limitations and restrictions must be considered at this step.”
Social Security Ruling (SSR) 96–3P, 1996 WL 374181, at *2 (S.S.A. July 2, 1996). Ultimately, a
severity determination may not be “made without regard to the individual’s ability to perform
substantial gainful activity.” Stone, 752 F.2d at 1104. “The ALJ has a duty to develop facts fully
and fairly, but reversal is appropriate only if the applicant shows that he was prejudiced.” Andablo
v. Astrue, 2012 WL 4893215, at *4 (N.D. Tex. 2012) (Fitzwater, C.J.) (quoting Ripley v. Chater, 67
F.3d, 552, 557 (5th Cir.1995)) (internal quotation marks omitted). “The ALJ’s duty to investigate,
though, does not extend to possible disabilities that are not alleged by the claimant or to those
disabilities that are not clearly indicated on the record.” Leggett, 67 F.3d at 566. Further, to support
a remand based on a failure to fully develop the record, a disability claimant must show that the
ALJ’s failure to develop the record prejudiced the claimant. Carey v. Apfel, 230 F.3d 131, 142 (5th
Cir. 2000). Prejudice is established if a claimant shows that she “could and would have adduced
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evidence that might have altered the result” reached by the ALJ. Id. (citing Kane v. Heckler, 731
F.2d 1216, 1220 (5th Cir. 1984)).
Although the ALJ did not use the correct Stone standard, he found that Plaintiff had severe
impairments in Affective Disorders and Anxiety Disorders. Although under the regulations, the ALJ
is required to determine whether any identified impairments are severe or not severe, a failure to do
so is not necessarily a basis for remand where the ALJ proceeds to the later steps of the sequential
evaluation process. See Adams v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987).
Plaintiff has the burden of establishing that he meets the criteria for a step three listing.
Plaintiff has failed to do so for Part A and B of 12.08. Even if the ALJ failed to consider 12.08, such
would be harmless error in that a finding that Plaintiff did not meet the B criteria for 12.04, and
12.06 would foreclose such a finding under 12.08. If Plaintiff contends that the ALJ erred in not
considering a 12.08 listing, then it is incumbent on Plaintiff to identify what criteria he met. See,
e.g., White v. Astrue, 2012 WL 4866510, at *12 (N.D. Tex. 2012) (finding that substantial evidence
supported the ALJ’s decision because the claimant failed to argue or provide evidence that he met
specific sections of the Listings), adopted by, 2012 WL 4868068 (N.D. Tex. 2012); Garrett v.
Astrue, 2011 WL 6938463, at *8 (N.D. Tex. 2011) (substantial evidence supports ALJ decision
where claimant failed to argue or provide evidence that he met the criteria of a Listing), adopted by,
2012 WL 11124 (N.D. Tex. 2012); Lloyd v. Astrue, 2011 WL 7049451, at *3 (W.D. La. 2011)
(ALJ’s decision was supported by substantial evidence where “plaintiff has not identified any listing
that he purports to meet or equal, nor has he demonstrated that he meets or equals all of the criteria
of any given listing”), adopted by, 2012 WL 135677 (W.D. La. 2012), aff’d, 484 Fed. Appx. 994 (5th
Cir. 2012), cert. denied, –– U.S.––, 133 S.Ct. 1470 (2013); White v. Astrue, 2009 WL 4823843, at
*2 (M.D. La. 2009) (“plaintiff does not provide the Court with any analysis of the relevant
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regulations or evidence to support his contention that his impairments meet or medically equal a
listed impairment. Further, plaintiff fails to suggest or inform the Court as to the listing or listings
his impairments meet. Therefore, the Court finds that plaintiff has failed in his burden at step
three.”).
The ALJ expressly considered Plaintiff’s personality disorder in his analysis (Tr. 14, 15).
There was also other medical evidence that discussed Plaintiff’s paranoia. Plaintiff makes no
argument that the ALJ should have considered a 12.03 listing, and therefore any complaint is waived.
The Court further finds that there is substantial evidence to support the ALJ’s assessment that
Plaintiff did not meet the C criteria for the listings. The ALJ gave his reasons for considering the
C criteria, and based on the ALJ’s assessment and the record as a whole, the Court finds no error.
Plaintiff’s last two points of error fault the ALJ for failing to fully incorporate his B criteria
findings into his RFC. The moderate limitations noted by the ALJ is not an RFC assessment. Social
Security Ruling (“SSR”) 96–8p, 1996 WL 374184, at *4 (S.S.A. July 2, 1996). Instead, it is used
to rate the severity of Plaintiff’s mental impairments at steps two and three of the sequential
evaluation process. Id.
“The mental RFC assessment used at steps four and five of the sequential evaluation process
requires a more detailed assessment by itemizing various functions contained in the broad categories
found in paragraphs B and C of the adult mental disorder listings in 12.00 of the Listing of
Impairments.” Id. These functions include the consideration of the claimant’s abilities to: (1)
understand, carry out, and remember instructions; (2) use judgment in making work-related
decisions; (3) respond appropriately to supervision, coworkers, and work situations; and (4) deal
with changes in a routine work setting. Id. at *6; see also 20 C.F.R. §§ 404.1545(c), 416.945(c).
Moreover, “[w]hile the regulations require the ALJ to evaluate[ ] the limitations imposed by
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Plaintiff’s mental impairments in certain areas and direct the ALJ to proceed to the RFC
determination if Plaintiff’s impairments are found severe, the regulations do not specifically require
the ALJ to find that the limitations found in evaluating the mental impairment must be word-forword incorporated into either the RFC determination or the hypothetical question posed to the VE.”
Patterson v. Astrue, 2009 WL 3110205, at *5 (N.D. Tex. 2009).
The ALJ properly discussed the evidence in the record in making the RFC determination,
explained the reasoning for the RFC determination, and exercised his responsibility as fact finder
in weighing the evidence and in choosing to incorporate limitations into the RFC assessment that
were most supported by the record. Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir. 1991). Because
there is substantial evidence in the record that supports the ALJ’s evaluation of Plaintiff’s mental
impairments as well as his mental RFC assessment, remand is not required.
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
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 27th day of August, 2015.
.

____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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