Fosha v. Barnhart, CIV.A. H04240.

• Decision Date: 18 March 2005
• Docket Number: No. CIV.A. H04240.,CIV.A. H04240.
• Parties: Donald R. FOSHA, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of the Social Security Administration, Defendant.
• Court: U.S. District Court — Southern District of Texas

372 F.Supp.2d 948

Donald R. FOSHA, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of the Social Security Administration, Defendant.

No. CIV.A. H04240.

United States District Court, S.D. Texas, Houston Division.

March 18, 2005.

William Fred Krause, Krause Earwood and Ward, Dallas, TX, for Donald R. Fosha, Plaintiff.

Marguerite Esposito Lokey, Special Asst U.S. Attorney, Dallas, TX, for Jo Anne Barnhart Commissioner Social Security Administration, Defendant.

MEMORANDUM AND ORDER

HOYT, District Judge.

On February 24, 2005, Magistrate Judge Calvin Botley issued a Memorandum and Recommendation [Doc. # 16] on Plaintiff Donald R. Fosha's ("Fosha") and Defendant Jo Anne B. Barnhart's, Commissioner of the Social Security Administration ("the Commissioner") cross-motions for summary judgment.

This Court has reviewed the Memorandum and Recommendation, noting that no objections have been filed, and the cross-motions for summary judgment filed by the parties. It is, therefore,

ORDERED that the Memorandum and Recommendation is ADOPTED as this Court's Memorandum and Order. It is further

ORDERED that Fosha's Motion for Summary Judgment [Doc. # 15] is DENIED. It is further

ORDERED that the Commissioner's Motion for Summary Judgment [Doc. # 13] is GRANTED. It is finally

ORDERED that this matter is DISMISSED WITH PREJUDICE.

MEMORANDUM AND RECOMMENDATION

BOTLEY, United States Magistrate Judge.

Pending before the Court are Plaintiff Donald R. Fosha ("Fosha") and Defendant Jo Anne B. Barnhart's, Commissioner of the Social Security Administration ("Commissioner"), cross-motions for summary judgment. Fosha appeals the determination of an Administrative Law Judge ("the ALJ") that he is not entitled to receive Title XVI supplemental security income benefits. See 42 U.S.C. § 1382c(a)(3)(A). Having reviewed the pending motions, the submissions of the parties, the pleadings, the administrative record, and the applicable law, it is recommended that Fosha's Motion for Summary Judgment (Docket Entry No. 15) be denied, the Commissioner's Motion for Summary Judgment (Docket Entry No. 13) be granted, and the ALJ's decision denying benefits be affirmed.

I. Background

On February 27, 2002, Fosha protectively filed an application for supplemental security income ("SSI") payments with the Social Security Administration ("SSA"), claiming that he has been disabled and unable to work since September 1, 1993, due to asthma and anxiety.¹ (R. 17, 83-85). After being denied benefits initially and on the reconsideration levels, Fosha requested an administrative hearing before an ALJ. (R. 55-58).

A hearing was held on June 25, 2003, in Houston, Texas, at which time the ALJ heard testimony from Fosha and Kay Gilreath, a vocational expert ("VE"). (R. 16, 25-51). In a decision dated August 13, 2003, the ALJ denied Fosha's application for benefits. (R. 16-23). On September 24, 2003, Fosha appealed the ALJ's decision to the Appeals Council of the SSA's Office of Hearings and Appeals. (R. 9-12). The Appeals Council, on November 21, 2003, denied Fosha's request to review the ALJ's determination. (R. 6-8). The denial rendered the ALJ's opinion the final decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000). Fosha filed the instant action on January 20, 2004, seeking judicial review of the Commissioner's denial of his claim for benefits. See Docket Entry No. 1.

II. Analysis

A. Statutory Bases for Benefits

SSI benefits are authorized by Title XVI of the Act and funded by general tax revenues. See SOCIAL SECURITY ADMINISTRATION, SOCIAL SECURITY HANDBOOK, § 2100 (14th ed.2001). The SSI Program is a general public assistance measure providing an additional resource to the aged, blind, and disabled to assure that their income does not fall below the poverty line. See 20 C.F.R. § 416.110. Eligibility for SSI is based upon proof of indigence and disability. See 42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). A claimant applying to the SSI program cannot receive payment for any period of disability predating the month in which he applies for benefits, no matter how long he has been actually disabled. See Brown v. Apfel, 192 F.3d 492, 495 n. 1 (5th Cir.1999); see also 20 C.F.R. § 416.335. The applicable regulation provides:

When you file an application in the month that you meet all the other requirements for eligibility, the earliest month for which we can pay you benefits is the month following the month you filed the application. If you file an application after the month you first meet all the other requirements for eligibility, we cannot pay you for the month in which your application is filed or any months before that month.

20 C.F.R. § 416.334. Thus, the month following an application, here, March 2002, fixes the earliest date from which benefits can be paid. (R. 60). Eligibility for SSI payments, however, is not dependent on insured status. See 42 U.S.C. § 1382(a).

B. Standard of Review

1. Summary Judgment

The court may grant summary judgment under FED. R. CIV. P. 56(c) when the moving party is entitled to judgment as a matter of law because there is no genuine issue as to any material fact. The burden of proof, however, rests with the movant to show that there is no evidence to support the nonmoving party's case. If a reasonable jury could return a verdict for the nonmoving party, then a motion for summary judgment cannot be granted because there exists a genuine issue of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

An issue of fact is "material" only if its resolution could affect the outcome of the case. See Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 189 (5th Cir.1991). When deciding whether to grant a motion for summary judgment, the court shall draw all justifiable inferences in favor of the nonmoving party, and deny the motion if there is some evidence to support the nonmoving party's position. See McAllister v. Resolution Trust Corp., 201 F.3d 570, 574 (5th Cir.2000). If there are no issues of material fact, the court shall review any questions of law de novo. See Merritt-Campbell, Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th Cir.1999). Once the movant properly supports the motion, the burden shifts to the nonmoving party, who must present specific and supported material facts, of significant probative value, to preclude summary judgment. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); International Ass'n of Machinists & Aerospace Workers, AFL-CIO v. Compania Mexicana de Aviacion, S.A. de C.V., 199 F.3d 796, 798 (5th Cir.2000).

2. Administrative Determination

Judicial review of the Commissioner's denial of disability benefits is limited to whether the final decision is supported by substantial evidence on the record as a whole and whether the proper legal standards were applied to evaluate the evidence. See Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir.2002). "Substantial evidence" means that the evidence must be enough to allow a reasonable mind to support the Commissioner's decision; it must be more than a mere scintilla and less than a preponderance. See Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Masterson, 309 F.3d at 272; Brown, 192 F.3d at 496.

When applying the substantial evidence standard on review, the court "scrutinize[s] the record to determine whether such evidence is present." Myers v. Apfel, 238 F.3d 617, 619 (5th Cir.2001) (citations omitted). If the Commissioner's findings are supported by substantial evidence, they are conclusive and must be affirmed. See Watson v. Barnhart, 288 F.3d 212, 215 (5th Cir.2002). Alternatively, a finding of no substantial evidence is appropriate if no credible evidentiary choices or medical findings support the decision. See Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir.2001). The court may not, however, reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner. See Masterson, 309 F.3d at 272. In short, "[c]onflicts in the evidence are for the Commissioner and not the courts to resolve." Id.

C. ALJ's Determination

An ALJ must engage in a five-step inquiry to determine whether the claimant is capable of performing "substantial gainful activity," or is, in fact, disabled:

1. An individual who is working and engaging in substantial gainful activity will not be found disabled regardless of the medical findings. See 20 C.F.R. § 416.920(b).

2. An individual who does not have a "severe impairment" will not be found to be disabled. See 20 C.F.R. § 416.920(c).

3. An individual who "meets or equals a listed impairment in Appendix 1" of the regulations will be considered disabled without consideration of vocational factors. See 20 C.F.R. § 416.920(d).

4. If an individual is capable of performing the work he has done in the past, a finding of "not disabled" must be made. See 20 C.F.R. § 416.920(e).

5. If an individual's impairment precludes performance of his past work, then other factors, including age, education, past work experience, and residual functional capacity must be considered to determine if any work can be performed. See 20 C.F.R. § 416.920(f).

Newton v. Apfel, 209 F.3d 448, 453 (5th Cir.2000); accord Boyd, 239 F.3d at 705. The claimant has the burden to prove disability under the first four steps. See Myers, 238 F.3d at 619. If the claimant successfully carries this burden, the burden shifts to the Commissioner in step five to show that other substantial gainful employment is available in the national economy, which the claimant is capable of performing. See Masterson, 309 F.3d at 272; Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.1994), cert. denied, 514 U.S. 1120, 115 S.Ct. 1984, 131 L.Ed.2d 871 (1995). If the Commissioner is able to verify that other work exists in significant numbers in the national economy...