Kishwar v. Colvin

• Decision Date: 03 August 2016
• Docket Number: CIVIL ACTION NO. H-15-2728
• Parties: SAHIBZADI NAFEES KISHWAR, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
• Court: U.S. District Court — Southern District of Texas

SAHIBZADI NAFEES KISHWAR, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF

THE SOCIAL SECURITY ADMINISTRATION, Defendant.

CIVIL ACTION NO. H-15-2728

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

ENTERED: August 4, 2016

August 3, 2016

MEMORANDUM AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Before the Magistrate Judge¹ in this social security appeal is Plaintiff's Motion for Summary Judgment and Memorandum in Support thereof (Document No. 14, 15), 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.17). After considering the cross motions for summary judgment, the administrative record, and the applicable law, the Magistrate Judge ORDERS, for the reasons set forth below, that Defendant's Motion for Summary Judgment (Document No. 12) is GRANTED, Plaintiff's Motion for Summary Judgment (Document No.14) is DENIED, and the decision of the Commissioner is AFFIRMED.

I. Introduction

Plaintiff, Sahibzadi Nafees Kishwar, ("Kishwar") brings this action pursuant to the Social Security Act ("Act"), 42 U.S.C. 405(g), seeking judicial review of a final decision of theCommissioner of Social Security Administration ("Commissioner") denying her application for disability benefits ("DIB") and social security benefits ("SSI"). Kishwar argues that substantial evidence does not support the Administrative Law Judge's ("ALJ") decision, and the ALJ, D'Lisa Simmons, committed errors of law when she found that Kishwar was not disabled. Kishwar argues that she has been disabled since December 31, 2007, due to a Chronic Neck and Back pain due to injury, Osteoarthritis in her left elbow, Osteoporosis, Type II Diabetes, Diabetic Peripheral Neuropathy, Depression, Carpal Tunnel Syndrome, Hypertension, Fibromyalgia, and Plantar Fasciitis. In a disability report that Kishwar completed near the time she filed for benefits, she stated she could not work because of pain in her neck and back, along with limited mobility in her left hand. In a function report that Kishwar completed near the time she filed for benefits, she elaborated that the primary problem that precluded her from working: "I am unable to lift heavy or anything more than 2-3 lbs... [because of] chronic back & neck pain. I have stenosis of spine and cannot stand for more than [ten] minutes and walk more than [ten] minutes." (Tr. 279). Kishwar seeks an order reversing the ALJ's decision and awarding benefits, or in the alternative, remanding her claim for further consideration. The Commissioner responds that there is substantial evidence in the record to support the ALJ's decision that Kishwar was not disabled, that the decision comports with applicable law, and that the decision should, therefore, be affirmed.

II. Administrative Proceedings

On October 15, 2013, Kishwar filed for disability insurance benefits ("DIB") and Supplemental Security Income Benefits ("SSI") claiming that she had been disabled since December 31, 2007, due to: Chronic Neck and Back pain, Osteoarthritis in her left elbow, Osteoporosis, Type II Diabetes, Diabetic Peripheral Neuropathy, Depression, Carpal Tunnel Syndrome, Hypertension, and Plantar Fasciitis. (Tr. 222-227, 228-236). The Social Security Administration denied her applications at the initial and reconsideration stages. (Tr. 78-89, 104-118). Kishwar then requested a hearing before an ALJ on May 29, 2014. (Tr. 161-162). The Social Security administration grantedher request, and the ALJ held a hearing on January 21, 2015. (Tr. 30-77). On March 10, 2015, the ALJ issued her decision finding Kishwar not disabled. (Tr. 11-24).

Kishwar 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. On June 8, 2015, the Appeals council denied Kishwar's request for review stating they had found "no reason under our rules to review the ALJ decision." (Tr. 1-3). Kishwar filed her appeal of the ALJ's decision on September 17,2015. The Commissioner filed a Motion for Summary Judgement (Document No. 12), to which the Plaintiff filed a Response. (Document No. 17). Likewise, Plaintiff has filed a Motion for Summary Judgement (Document No. 14), to which the Defendant has filed a Response. (Document No. 16). This appeal is now ripe for ruling.

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.2d1233, 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 theimmediate 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 in any 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 functional capacity, he will be found disabled.

Anthony, 954 F.2d at 293; see also Leggett v. Chater, 67 F.3d 558, 563 n.2 (5th Cir. 1995); Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). Under this formula, the claimant bears the burden of proof on the first four steps of the analysis to establish that a disability exists. If successful, the burden shifts to the Commissioner, at step five, to show that the claimant can perform other work. McQueen v. Apfel, 168 F.3d 152, 154 (5th...