Michell v. Astrue

Filing 16

OPINION ON APPEAL:...the Court concludes that the decision of the Commissioner should be and hereby is AFFIRMED. See Opinion for further specifics. (Ordered by Judge Terry R Means on 4/29/2011) (egb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
MICHAEL HARRISON MICHELL

§
§
VS.
§
§
MICHAEL J. ASTRUE,
§
Commissioner of Social Security §

ACTION NO. 4:10-CV-339-Y

OPINION ON APPEAL
Plaintiff Michael Harrison Michell filed this action seeking
judicial review of a final decision of the Commissioner of Social
Security denying his claims for disability-insurance benefits under
Title II and supplemental-security-income ("SSI") benefits under Title
XVI of the Social Security Act ("SSA").

42 U.S.C.A. §§ 405(g),

1383(c)(3) (2010). On October 30, 2006, Michell filed applications
for Title II and XVI benefits alleging that he became disabled on
May 12, 2006.

After his application was denied initially and upon

reconsideration, he requested a hearing before an administrative law
judge ("ALJ"), which was held on August 11, 2008.

The ALJ issued

an unfavorable decision on November 19, 2008. As a result, Michell
sought review by the appeals council.

The appeals council denied

review, thus leaving the ALJ's decision as the final decision of the
Commissioner. Michell now seeks this Court's review of that decision.
I.

Standard of Review

Disability insurance is governed by Title II, 42 U.S.C. § 404
et seq., and SSI benefits are governed by Title XVI, 42 U.S.C. § 1381
et seq., of the SSA.

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In addition, numerous regulatory provisions

govern disability-insurance and SSI benefits. See 20 C.F.R. Pt. 404
(disability insurance); 20 C.F.R. Pt. 416 (SSI). Although technically
governed by different statutes and regulations, "[t]he law and
regulations governing the determination of disability are the same
for both disability insurance benefits and SSI."

Greenspan v.

Shalala, 38 F.3d 232, 236 (5th Cir. 1994).
The SSA 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. 42 U.S.C.
§§ 423(d), 1382c(a)(3)(A); McQueen v. Apfel, 168 F.3d 152, 154 (5th
Cir. 1999). In determining whether a claimant is disabled and thus
entitled to disability benefits, the Commissioner employs a five-step
sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
First, the claimant must not be presently working at any substantial
gainful activity.

Substantial gainful activity is defined as work

activity involving the use of significant physical or mental abilities
for pay or profit. See 20 C.F.R. §§ 404.1527, 416.972. Second, the
claimant must have an impairment or combination of impairments that
is severe.

See 20 C.F.R. §§ 404.1520(C), 416.920(c); Stone v.

Heckler, 752 F.2d 1099, 1100-01 (5th Cir. 1985). Third, disability
will be found if the impairment or combination of impairments meets
or equals an impairment listed in the listing of impairments, 20
C.F.R. Pt. 404, Subpt. P, App. 1.
416.920(d).

See 20 C.F.R. §§ 404.1520(d),

Fourth, if disability cannot be found on the basis of

the claimant's medical status alone, the impairment or impairments
must prevent the claimant from returning to his past relevant work.
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Id. §§ 404.1520(e), 416.920(e).

And "[f]ifth, the impairment must

prevent the claimant from doing any relevant work, considering the
claimant's residual functional capacity, age, education, and past
work experience." Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir.
1999); see 20 C.F.R. §§ 404.1520(f), 416.920(f).

"At steps one

through four, the burden of proof rests upon the claimant to show
that he is disabled."

Crowley, 197 F.3d at 198.

If the claimant

satisfies this responsibility, the burden shifts to the Commissioner
at step five to show that there is other gainful employment the
claimant

is

impairments.

capable

of

performing

in

spite

of

his

existing

Id.

A denial of disability benefits is reviewed only to determine
whether the Commissioner applied the correct legal standards and
whether the decision is supported by substantial evidence in the
record as a whole.

Leggett v. Chater, 67 F.3d 558, 564 (5th Cir.

1995); Hollis v. Bowen, 837 F.2d 1378, 1382 (5th Cir. 1988).
"Substantial evidence is such relevant evidence as a responsible mind
might accept to support a conclusion."

Harris v. Apfel, 209 F.3d

413, 417 (5th Cir. 2000) (quoting Ripley v. Chater, 67 F.3d 552, 555
(5th Cir. 1995)).

It is more than a mere scintilla, but less than

a preponderance. Id. "A finding that substantial evidence is lacking
is appropriate only if no credible evidentiary choices or medical
findings support the decision." Id. This Court may neither reweigh
the evidence in the record nor substitute its judgment for that of
the Commissioner, but instead will carefully scrutinize the record
to determine if substantial evidence is present.
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See id.; Hollis,

837 F.2d at 1383.
II.

Issues

1.

Whether Michell's case must be remanded for consideration
of allegedly new and material evidence.

2.

Whether the Commissioner's decision is based upon an
improper legal standard because the appeals council
allegedly refused to consider the new evidence.
III.

Discussion

In his decision, the ALJ analyzed Michell's claim pursuant to
the five-step evaluation process.

At step one, the ALJ determined

that Michell had not engaged in substantial gainful activity since
May 12, 2006, the alleged onset date.

(R. 18.)

At step two, the

ALJ found that Michell had the following "severe" impairments: lumbar
spine degenerative disc disease status post laminectomy, and obesity.
(Id.)

At step three, the ALJ determined Michell 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. (R. 20.) At step four, the ALJ determined that Michell
was unable to perform any of his past relevant work, including as
a shipping and receiving clerk, delivery driver, limo driver, and
loss-prevention worker. (R. 22, 142.) Nevertheless, at step five,
the ALJ concluded, based upon testimony at the hearing provided by
a vocational expert, that Michell could perform other work in the
national economy, such as a toll-booth collector, parking-lot
attendant, or gate attendant.

(R. 23.)

The ALJ concluded that

Michell's subjective complaints of pain simply were inconsistent with

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the record as a whole. (R. 21) Thus, the ALJ concluded that Michell
was not disabled at any time through November 19, 2008, the date of
his decision.

(R. 23)

Michell requested review by the appeals council, which denied
the request. In support of review, Michell submitted various medical
records from March through May 2009. (R. 2.)

The appeals council

noted that the ALJ decided Michell's case through November 18, 2008,
and thus concluded that the new evidence "is about a later time [and]
does not affect the decision about whether [Michell was] disabled
beginning on or before November 18, 2008."

(R. 2.)

Michell now

complains that the appeals council refused to consider "a May 2009
operative report showing scar tissue in his lumbar spine at the site
of his July 2007 surgery."

(Pl.'s Br. 1.)

Social-security regulations allow claimants to submit new and
material evidence to the appeals council when requesting review of
an ALJ's decision to deny benefits.

20 C.F.R. §§ 404.970(b),

404.976(b); see Rodriguez v. Barnhart, 252 F. Supp. 2d 329, 331 (N.D.
Tex. 2003) (Solis, J.)

The appeals council is then required to

evaluate the entire record, including the new and material evidence
submitted by the claimant, but only if the new evidence "relates to
the period on or before the date of the [ALJ's] hearing decision."
20 C.F.R. §§ 404.970(b); 404.976(b); see also Leggett, 67 F.3d at
567 (noting that new evidence must "pertain to the contested time
period and not merely concern a subsequently acquired disability or
the deterioration of a condition that was not previously disabling").
Nevertheless, "[e]vidence submitted for the first time to the Appeals
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Council is considered part of the record upon which the Commissioner's
final decision is based."

Lee v. Astrue, No. 3:10-CV-155-BH, 2010

WL 3001904, at *7 (N.D. Tex. July 31, 2010) (Ramirez, M.J.) (citing
Higginbotham v. Barnhart, 405 F.3d 332, 337 (5th Cir. 2005). Thus,
"[a] court considering the final decision should review the record
as a whole, including the new evidence, to determine whether the
Commissioner's findings are supported by substantial evidence, and
should remand only if the new evidence dilutes the record to such
an extent that the ALJ's decision becomes insufficiently supported."
Id. (citing Higginbotham v. Barnhart, 163 F. App'x 279, 281-82 (5th
Cir. 2006).
Michell contends that the appeals council erred in concluding
that the May 2009 operative report concerned a later time period and
thus did not affect the ALJ's decision that he was disabled.
Court disagrees.

The

The report was from an operation conducted on

Michell as a result of an "L4-5 herniated disc" on May 28, 2009, over
six months after the ALJ issued his decision. (Michell's App. 1.)
Michell contends that it reflects significant scarring at the site
of his previous surgery ("L5-S1"), (Id. 4.), but there is no objective
medical evidence indicating that such scarring either occurred or
resulted in disabling pain prior to the date of the ALJ's decision
six months before Michell's second back surgery. See McGee v. Astrue,
No. 08-0831, 2009 WL 2841113, at *6 (W.D. La. Aug. 28, 2009) (noting
that there is "no indication that the [new evidence] reflected
plaintiff's condition as of the hearing date or at the time of the
ALJ's decision"). Indeed, as noted in the Commissioner's brief, the
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doctor's notes from this second operation indicate that Michell's
pain started in November 2008--the same month that the ALJ issued
his decision that Michell was not disabled. (Michell's App. at 1.)
More importantly, this allegedly new evidence does not refute
the main reasons why the ALJ found Michell's complaints about
disabling pain inconsistent with the record as a whole.

Michell

denied using any assistive devices to aid in ambulation since his
surgery. (R. 20, 37-38.) And his pain symptoms apparently had "never
been as severe as to preclude him from acting effectively as primary
caregiver to his children."

(R. 21, 33.)

Nor had they prevented

Michell from pursuing a college degree. (R. 21 (noting that Michell's
"ability to successfully undertake college level academic coursework
also indicates that his pain has been substantially ameliorated with
treatment and that it does not interfere with his ability to maintain
concentration, persistence, and pace or comprehend even complex
matters"), 32, 34) Michell also testified that he "does the laundry,
prepares the meals, shops for groceries, [and] takes care of his
personal grooming." (R. 21; 40-42.) "It is appropriate for the Court
to consider the claimant's daily activities when deciding the
claimant's disability status." Leggett, 67 F.3d 558, 565 n.12. Thus,
after review of the record as a whole, the Court cannot conclude that
Michell's new evidence dilutes the record to the point that the ALJ's
ultimate finding is insufficiently supported.

Thus, the Court

concludes that substantial evidence supports the Commissioner's
decision that Michell was not disabled prior to November 19, 2008.

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IV.

Conclusion

For the foregoing reasons, the Court concludes that the decision
of the Commissioner should be and hereby is AFFIRMED.
SIGNED April 29, 2011.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE

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