Gipson v. Colvin

• Decision Date: 06 November 2013
• Docket Number: CIVIL ACTION NO. H-12-3258
• Parties: BYRON DUANE GIPSON, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
• Court: U.S. District Court — Southern District of Texas

BYRON DUANE GIPSON, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIALSECURITY ADMINISTRATION,¹ Defendant.

CIVIL ACTION NO. H-12-3258

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Signed: November 6, 2013

MEMORANDUM AND ORDER DENYING PLAINTIFF'S

MOTION FOR SUMMARY JUDGMENT AND GRANTING

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Before the Magistrate Judge² in this social security appeal is Plaintiff's Motion for Summary Judgment and Memorandum in Support thereof (Document No.14), Defendant's Response to Plaintiff's Motion for Summary Judgment (Document No.16), Defendant's Motion for Summary Judgment (Document No. 12) and Memorandum in Support thereof (Document No.13) and Plaintiff's Response to Defendant's Motion for Summary Judgment (Document No. 15). After considering the cross motions for summary judgment, the administrative record, and the applicablelaw, the Magistrate Judge ORDERS, for the reasons set forth below, that Defendant's Motion for Summary Judgment (Document No. 10) is GRANTED, Plaintiff's Motion for Summary Judgment (Document No. 11) is DENIED, and the decision of the Commissioner is AFFIRMED.

I. Introduction

Plaintiff, Bryon Duane Gipson, ("Gipson") brings this action pursuant to the Social Security Act ("Act"), 42 U.S.C. 405(g), seeking judicial review of a final decision of the Commissioner of Social Security Administration ("Commissioner") denying his application for disability benefits ("DIB"). Gipson argues that substantial evidence does not support the Administrative Law Judge's ("ALJ") decision, and the ALJ, Allen G. Erickson, committed errors of law when he found that Gipson was not disabled. Gipson argues that he has been disabled since February 15, 2009, due to human immunodeficiency virus ("HIV")/Acquired Immune Deficiency Syndrome ("AIDS"), peripheral neuropathy in both legs, hepatitis C, depression, headaches, spine injury and rheumatoid arthritis. In a disability report that Gipson completed near the time he filed for benefits, he stated he could not work because of HIV and a "problem right leg." (Tr. 272). In a function report completed the same time, Gipson elaborated on the primary problems that precluded him from working: "I can't really work because my leg when I was in the hospital for my HIV and syphilis. I had a spinal tap and it messed up my legs. I have a severe limp that limits my movement. I can't even do what I love anymore which is drive a forklift and yes and yes I do have a cane to help me walk." (Tr. 291). Gipson seeks an order reversing the ALJ's decision and awarding benefits, or in the alternative, remanding his claim for further consideration. The Commissioner responds that there is substantial evidence in the record to support the ALJ's decision that Gipson was not disabled, that the decision comports with applicable law, and that the decision should, therefore, be affirmed.

II. Administrative Proceedings

On April 15, 2009, Gipson filed for disability insurance benefits ("DIB") claiming that he has been disabled since February 15, 2009, due to Human Immunodeficiency Virus ("HIV") and problems with his right leg. (Tr. 238-243). The Social Security Administration denied his application at the initial and reconsideration stages. (Tr.132-133, 152-155, 160-162). Gipson then requested a hearing before an ALJ. (Tr.163-165). The Social Security Administration granted his request, and the ALJ held a hearing on February 16, 2010. (Tr.24-72). On February 26, 2010, the ALJ issued his decision finding Gipson not disabled. (Tr. 132-147).

Gipson sought review by the Appeals Council of the ALJ's adverse decision. The Appeals Council will grant a request to review an ALJ's decision if any of the following circumstances are present: (1) it appears that the ALJ abused his discretion; (2) the ALJ made an error of law in reaching his conclusion; (3) substantial evidence does not support the ALJ's actions, findings, or conclusions; (4) a broad policy issue may affect the public interest; or (5) there is new and material evidence and the decision is contrary to the weight of all the record evidence. The Appeals Council, on May 28, 2010, granted Gipson's request for review, and remanded the matter to the ALJ with instructions to reevaluate the treating source opinion in Exhibit 9F because it was unclear whether the assessment had been completed by Dr. Roberto Andrade, Gipson's treating physician or by Roberto Sandoval, his physical therapist, and for further development of the record concerning Gipson's past work as a telephone operator. (Tr.149-150). Pursuant to the Order of Remand from the Appeals Council, a second hearing was held November 24, 2010. (Tr. 73-131). On February 28, 2011, the ALJ issued his decision finding Gipson not disabled. (Tr. 6-22). Gipson sought review by the Appeals Council of the ALJ's decision. (Tr. 5) The Appeals Council denied Gipson's request on August 30, 2012. (Tr. 1-4) Gipson has timely filed his appeal of the ALJ's decision. The Commissioner has filed a Motion for Summary Judgment (Document No. 12), to which Plaintifffiled a Response. (Document No. 15). Likewise, Plaintiff has filed a Motion for Summary Judgment (Document No. 14), to which Defendant has filed a Response. (Document No. 16). This appeal is now ripe for ruling.

The evidence is set forth in the transcript, pages 1 through 768. (Document No. 6). There is no dispute as to the facts contained therein.

III. Standard for Review of Agency Decision

The court, in its review of a denial of disability benefits, is only "to [determine] (1) whether substantial evidence supports the Commissioner's decision, and (2) whether the Commissioner's decision comports with relevant legal standards." Jones v. Apfel, 174 F.3d 692, 693 (5th Cir. 1999). Indeed, Title 42, Section 405(g) limits judicial review of the Commissioner's decision as follows: "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). The Act specifically grants the district court the power to enter judgment, upon the pleadings, and transcript, "affirming, modifying, or reversing the decision of the Commissioner of Social Security with or without remanding the case for a rehearing" when not supported by substantial evidence. Id. While it is incumbent upon the court to examine the record in its entirety to decide whether the decision is supportable, Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979), the court may not "reweigh the evidence in the record nor try the issues de novo, nor substitute its judgment" for that of the Commissioner even if the evidence preponderates against the Commissioner's decision. Chaparro v. Bowen, 815 F.2d 1008, 1009 (5th Cir. 1987); see also Jones at 693; Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985). Conflicts in the evidence are for the Commissioner to resolve. Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992).

The United States Supreme Court has defined "substantial evidence," as used in the Act, to be "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). Substantial evidence is "more than a scintilla and less than a preponderance." Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). The evidence must create more than "a suspicion of the existence of the fact to be established, but no 'substantial evidence' will be found 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) (quoting Hemphill v. Weinberger, 483 F.2d 1127 (5th Cir. 1973)).

IV. Burden of Proof

An individual claiming entitlement to disability insurance benefits under the Act has the burden of proving his disability. Johnson v. Bowen, 864 F.2d 340, 344 (5th Cir. 1988). The Act defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A). The impairment must be proven through medically accepted clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). The impairment must be so severe as to limit the claimant in the following manner:

he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 423(d)(2)(A). The mere presence of an impairment is not enough to establish that one is suffering from a disability. Rather, a claimant is disabled only if he is "incapable of engaging inany substantial gainful activity." Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992) (quoting Milan v. Bowen, 782 F.2d 1284 (5th Cir. 1986)).

The Commissioner applies a five-step sequential process to determine disability status:

1. If the claimant is presently working, a finding of "not disabled" must be made;

2. If the claimant does not have a "severe" impairment or combination of impairments, he will not be found disabled;

3. If the claimant has an impairment that meets or equals an impairment listed in Appendix 1 of the Regulations, disability is presumed and benefits are awarded;

4. If the claimant is capable of performing past relevant work, a finding of "not disabled" must be made; and

5. If the claimant's impairment prevents him from doing any other substantial gainful activity, taking into consideration his age, education, past work experience, and residual

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