Andrade v. Astrue
| Decision Date | 13 February 2012 |
| Docket Number | CIVIL ACTION NO. 4:11-CV-318-Y |
| Parties | SHERRY ANDRADE, PLAINTIFF, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT. |
| Court | U.S. District Court — Northern District of Texas |
This case was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b). The Findings, Conclusions and Recommendation of the United States Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
Plaintiff Sherry Andrade ("Andrade") filed this action pursuant to Sections 405(g) and 1383(c)(3) of Title 42 of the United States Code for judicial review of a final decision of the Commissioner of Social Security denying her claims for disability insurance benefits under Title II and supplemental security income ("SSI") benefits under Title XVI of the Social Security Act ("SSA"). In July 2006, Andrade protectively applied for disability insurance and SSI benefits, alleging disability commencing on March 15, 2006. (Tr. 24, 110-18.)
After her applications for benefits were denied initially and on reconsideration, Andrade requested a hearing before an administrative law judge (the "ALJ"). (Tr. 24, 35-50; see Tr. 55-66, 72-81.) The ALJ held a hearing on September 2, 2008 and issued a decision on September 26, 2008, in which he found that Andrade was not disabled and was not entitled to disability insurance or SSI benefits because she retained the ability to perform several jobs that occurred in significant numbers in the national economy. (Tr. 21-34). The Appeals Council denied Andrade's request for review, leaving the ALJ's decision to stand as the final decision of the Commissioner. (Tr. 3-7; see Tr. 15-16.)
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. 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). To determine whether a claimant is disabled, and thus entitled to disability benefits, a five-step analysis is employed. 20 C.F.R. §§ 404.1520, 416.920 (2009). First, the claimant must not be presently working at any substantial gainful activity. Substantial gainful activity is defined as workactivity involving the use of significant physical or mental abilities for pay or profit. 20 C.F.R. §§ 404.1527, 416.972. Second, the claimant must have an impairment or combination of impairments that is severe. 20 C.F.R. §§ 404.1520(c), 416.920(c); Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985), cited in Loza v. Apfel, 219 F.3d 378, 392 (5th Cir. 2000). Third, disability will be found if the impairment or combination of impairments meets or equals an impairment listed in the Listing of Impairments ("Listing"), 20 C.F.R. Pt. 404, Subpt. P, App. 1. 20 C.F.R. §§ 404.1520(d), 416.920(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. Id. §§ 404.1520(e), 416.920(e). And fifth, the impairment must prevent the claimant from doing any work, considering the claimant's residual functional capacity, age, education, and past work experience. Id. §§ 404.1520(f), 416.920(f); Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir. 1999). At steps one through four, the burden of proof rests upon the claimant to show he is disabled. Crowley, 197 F.3d at 198. If the claimant satisfies this responsibility, the burden shifts to the Commissioner to show that there is other gainful employment the claimant is capable of performing in spite of his existing impairments. 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. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). It is more than a mere scintilla, but less than a preponderance. Id. A finding of no substantial evidence 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 the Commissioner's, but will carefully scrutinize the record to determine if the evidence is present. Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000); Hollis, 837 F.2d at 1383.
Andrade presents the following issues:
In his September 26, 2008 decision, the ALJ found that Andrade met the disability insured status requirements of the SSA through December 31, 2006 and that she had not engaged in substantial gainful activity since March 15, 2006, the date of her alleged onset of disability. (Tr. 24, 32-33.) The ALJ further found that Andrade had the severe impairments of (1) degenerative disc disease in the lumbar spine; (2) degenerative changes in her knees; (3) controlled hypertension, with a history of now asymptomatic congestive heart failure; (4) non-insulin dependent diabetes mellitus; and (5) obesity. (Tr. 33; see Tr. 25.) Next, the ALJ held that none of Andrade's impairments or combination of impairments met or equaled the severity of any impairment in the Listing. (Tr. 33.) As to Andrade's RFC, the ALJ stated, (Tr. 33; see Tr. 29-31.) The ALJ opined, based on his RFC assessment, that Andrade was not able to perform her past relevant work as a "night club/bar and grill manager or cook" but that there were several jobs that existed in significant numbers in the national economy that Andrade could perform. (Tr. 33; see Tr. 31-34.) Thus, the ALJ found that Andrade was not disabled. (Tr. 32, 34.)
Andrade argues that the "ALJ erred in assessing the severity of Andrade's chronic pain syndrome when evaluating the combination of impairments." (Pl.'s Br. at 11 (emphasis omitted); see Pl.'s Br. at 11-15.) Andrade claims that the record "contains several reports from physicians in which [her] chronic pain syndrome [was] discussed" and that her chronic pain affects her ability to work. (Pl.'s Br. at 12-13.) Andrade argues that the ALJ "impliedly found that [her] chronic pain syndrome was not a severe impairment," was not considered a medically determinable severe impairment, and was not considered in combination with her other impairments throughout the disability process as required by 20 C.F.R. § 404.1523. (Pl.'s Br. at 11.) Andrade contends that the record contains the following reports from physicians in which her chronic pain syndrome was discussed: (1) a December 14, 2007 History and Physical Report in which Sanjoy Sundaresan, M.D. ("Sundaresan") "noted that Andrade[] suffers from chronic pain disorder, which causes physical and psychosocial limitations" (Pl.'s Br. at 12; see Tr. 330); (2) a Physical Residual Functional Capacity Questionnaire dated August 9, 2007 in which Robert Allensworth, M.D. "Allensworth," assessed Andrade with "chronic pain," rated Andrade's pain level at an eight out of ten and her fatigue level at a nine out of ten, and opined that Andrade had emotional problems that contributed to theseverity of her symptoms and functional limitations. (Pl.'s Br. at 12; see Tr. 308-312.) In addition, Andrade claims that the record contains evidence of the effect of her chronic pain on her ability to work. (Pl.'s Br. at 12; see Tr. 146, 160-63, 308-11, 330-33, 348.) Andrade, citing to Mahoney v. Astrue, No. 3:09-CV-810-L, 2009 WL 3097334, at *5-9 (N.D. Tex. Sept. 25, 2009), argues that the ALJ's failure to follow 20 C.F.R. § 404.15231 resulted in an improper RFC assessment and, thus, an improper disability determination. (P.'s Br. at 13.)
The Commissioner, on the other hand, argues that the ALJ properly considered all of Andrade's impairments, both singly and in combination, and did not err in his assessment of her alleged chronic pain syndrome. (Def.'s Br. at 6-11.) The Commissioner claims that, contrary to Andrade's assertions, Andrade has never been diagnosed with "chronic pain syndrome" nor did she allege it in her application for disability. (Def.'s Br. at 6.) The Commissioner argues that the "ALJ's duty to investigate does not extend to possible disabilities that are not alleged by Andrade and not clearly indicated...
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