Schoenfeld v. Colvin

Filing 17

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 1 Complaint filed by Todd Schoenfeld. 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 2/29/2016. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
TODD MATTHEW SCHOENFELD
V.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION

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CASE NO. 4:14-CV-271

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 Supplemental Security Income disability benefits
under Title XVI of the Social Security Act on June 9, 2011, claiming entitlement to disability
benefits due to impairments in his back, chest, and depression. 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 July 26, 2012. Plaintiff was represented by
counsel at the proceeding. At the hearing, Plaintiff and a vocational expert, Michael F. Gartman,
testified.
On October 25, 2012, the ALJ denied Plaintiff’s claim, finding Plaintiff “not disabled.”
Plaintiff requested Appeals Council review, which the Appeals Council denied on December 18,
2013. Therefore, the October 25, 2012 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
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(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 meets the insured status requirements of the Social Security
Act through September 30, 2014.

2.

The claimant has not engaged in substantial gainful activity December 14,
2009, the alleged onset date (20 CFR 404.1571 et seq. and 416.971 et
seq.).

3.

The claimant has the following severe impairments: fibromyalgia,
degenerative disc disease of the spine, costochondritis, diabetes mellitus,
hypertension and migraine headaches.

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 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).

5.

The claimant has the residual functional capacity to perform a full range of
sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) in that
he can lift and/or carry 10 pounds occasionally, lift and/or carry less than
10 pounds frequently, stand/walk for at least 2 hours in an 8-hour
workday, and sit for 6 hours in an 8-hour workday. However, he is limited
to occasionally climbing ramps and stairs, stooping, kneeling and
crouching. He should avoid climbing ladders, ropes, and scaffolds.

6.

The claimant is capable of performing past relevant work as an
Information Manager (DOT#709.067-010/SVP 7/sedentary). This work
does not require the performance of work-related activities precluded by
the claimant’s residual functional capacity (20 CFR 404.1565 and
416.965).

7.

The claimant has not been under a disability, as defined in the Social
Security Act, from December 14, 2009, through the date of this decision
(20 CFR 404.1520(f) and 416.920(f)).

(Tr. 30-36).

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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© (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).
In this case, a determination was made at the fourth step.
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ANALYSIS
Plaintiff’s first point of error requests a remand because the Appeals Council failed to
consider the opinions of Plaintiff’s Treating Chiropractor and Spinal Specialist, Dr. Bivens. Plaintiff
states that he suffers from a number of cervical, thoracic and lumbar issues.
The ALJ’s decision lists with meticulous detail the treatments and procedures Plaintiff has
undergone. Contrary to Plaintiff’s position, the Appeals Council specifically considered the opinion
of Dr. Bivens in arriving at its decision to deny the appeal.
Plaintiff has also submitted a number of records in an “Addendum” which he claims were
omitted from the record and not before the Appeals Council. The Court agrees that documents (1222) were submitted after the date the ALJ rendered his decision and do not relate back to Plaintiff’s
claim. Evidence submitted to the Appeals Council was thus not material and does not provide a
basis for reversal. See Beck v. Barnhart, 205 Fed. Appx. 207, 214 (5th Cir. 2006).
A request for Appeals Council review of an ALJ’s decision is the fourth and final stage in
the administrative process of adjudicating claims for benefits under the Social Security Act. Social
Security Regulations expressly authorize a claimant to submit “new and material” evidence to the
Appeals Council when requesting review of an ALJ’s decision to deny benefits. See 20 C.F.R. §§
404.970(b), 416.1470(b). However, the submission of new and material evidence does not require
the Appeals Council to grant review of the decision. See Matthews v. Apfel, 239 F.3d 589, 592 (3d
Cir.2001). “On the contrary, the regulations provide that the Appeals Council will grant review only
if it finds that the ALJ’s decision ‘is contrary to the weight of the evidence currently of record.’” Id.
(quoting 20 C.F.R. 404.970(b)). If the new evidence relates to a period before the ALJ’s decision,
the Appeals Council “shall evaluate the entire record including the new and material evidence
submitted ... [and] then review the case if it finds that the administrative law judge's action, findings,
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or conclusion is contrary to the weight of the evidence currently of record.” See 20 C.F.R. §
404.970(b) (emphasis added); see also id. § 416.1470(b).
When the Appeals Council grants review, the decision of the Appeals Council is the final
decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. However, if the Appeals
Council denies review, the ALJ’s decision becomes the Commissioner’s final decision. See 20
C.F.R. §§ 404.981, 416.1481. The final decision of the Commissioner is subject to judicial review.
See 42 U.S.C. § 405(g).

See Rodriguez v. Barnhart, 252 F. Supp. 2d 329, 331 32 (N.D. Tex.

2003). The evidence submitted does not support a finding of materiality. Nothing in the records
submitted warrant reversal of the ALJ’s decision.
Plaintiff also argues that the 89-page addendum was somehow left out of the appeals record.
The Court has no way to determine if this was the case or not. The Court’s review is limited to the
record before it. See Carrier v. Sullivan, 944 F2d 243,247 (5th Cir. 1991). Most of the documents
relate to the time period after the ALJ’s decision and would not be relevant in any event.
In fact, the last four pages of radiological studies submitted only bolster the ALJ’s extensive
findings in his analysis. Those findings note mild lumbar bulging, no significant spinal canal
stenosis, mild cervical spondyloysis, small degenerative disc protrusions at T8-9 and T9-10 without
significant spinal canal stenosis or neural l foraminal narrowing - otherwise unremarkable
appearance of the thoracic spine.
In any event, the Court finds that the new evidence submitted by Plaintiff in his addendum
is not material and that no good cause has been shown for incorporating it into the prior record. As
noted, the evidence only supports the ALJ’s position.
Plaintiff also argues that the ALJ’s credibility assessment is flawed. The ALJ reviewed
Plaintiff’s treatment history and identified medical examinations showing intact strength, normal
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reflexes, and normal gait (Tr. 33-35, 600-601, 611, 754). See Hollis v. Bowen, 837 F.2d 1378,
1384-85 (5th Cir. 1988) (lack of objective factors supporting complaints may be properly
considered). As the ALJ noted, “no treating physician has recommended any specific work-related
restrictions as warranted by the claimant’s back condition” or described Plaintiff as disabled (Tr. 34,
36).

See Vaughan v. Shalala, 58 F.3d 129, 131 (5th Cir. 1995) (ALJ’s determination of

non-disability is supported when no physician of record states that the claimant is disabled). These
findings contradict Plaintiff’s claim that he is “unable to ambulate without assistance from others,
cane, a wheelchair, or scooter.” See Plaintiff’s Brief at 14. The ALJ further found that Plaintiff’s
allegations of disabling pain were inconsistent with his daily activities, noting that Plaintiff reported
that he was able to care for his personal needs, prepared his own meals, and drove himself to go
shopping (Tr. 35, 177-180). See Leggett v. Chater, 67 F.3d 558, 565 n.12 (5th Cir. 1995) (activities
may be properly considered in evaluating credibility).
“It is within the ALJ’s discretion to determine the disabling nature of a claimant’s pain, and
the ALJ’s determination is entitled to considerable deference.” Chambliss v. Massanari, 269 F.3d
520, 522 (5th Cir. 2001). The ALJ properly identified the evidence of record that supported his
findings, which is properly within his discretion as the finder of fact. See Carrier v. Sullivan, 944
F.2d 243, 247 (5th Cir. 1991) (judgment as to the credibility of subjective complaints is the province
of the ALJ). Plaintiff has shown no error.
RECOMMENDATION
Pursuant to the foregoing, the Court RECOMMENDS that the decision of the Administrative
Law Judge be AFFIRMED.

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Within fourteen (14) days after service of the magistrate judge’s report, any party may serve
and file written objections to the findings and recommendations of the magistrate judge.
28 U.S.C.A. § 636(b)(1)(c) .
A party is entitled to a de novo review by the district court of the findings and conclusions
contained in this report only if specific objections are made, and failure to timely file written
objections to any proposed findings, conclusions, and recommendations contained in this report shall
bar an aggrieved party from appellate review of those factual findings and legal conclusions accepted
by the district court, except on grounds of plain error, provided that the party has been served with
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notice that such consequences will result from a failure to object. Id.; Thomas v. Arn, 474 U.S. 140,
148 (1985); Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc),
superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections
from ten to fourteen days).
SIGNED this 29th day of February, 2016.
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DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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