Smith v. Astrue, Civil Action No. 11–02011.

• Decision Date: 31 August 2012
• Docket Number: Civil Action No. 11–02011.
• Citation: 914 F.Supp.2d 764
• Parties: Brenda Aimee SMITH v. Michael J. ASTRUE, Commissioner of Social Security Administration.
• Court: U.S. District Court — Eastern District of Louisiana

914 F.Supp.2d 764

Brenda Aimee SMITH

v.Michael J. ASTRUE, Commissioner of Social Security Administration.

Civil Action No. 11–02011.

United States District Court,

E.D. Louisiana.

Aug. 31, 2012.

Stanley J. Bordelon, II, Peter J. Lemoine Law Firm, Cottonport, LA, Julie Atkins, Atkins Law Office, Harlan, KY, for Brenda Aimee Smith.

Jason M. Bigelow, U.S. Attorney's Office, New Orleans, LA, for Michael J. Astrue.

ORDER

LANCE M. AFRICK, District Judge.

The Court, having considered the motions, the record, the applicable law, the Magistrate Judge's Report and Recommendation, and the objection by plaintiff, Brenda Aimee Smith, which is hereby OVERRULED, approves the Magistrate Judge's Report and Recommendation and adopts it as its opinion herein.

Accordingly,

IT IS ORDERED that plaintiff's motion for summary judgment is DENIED and that defendant's motion for summary judgment is GRANTED.

REPORT AND RECOMMENDATION

ALMA L. CHASEZ, United States Magistrate Judge.

Pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2(B), this matter comes before the Court on the parties' cross-motions for summary judgment following a decision of the Commissioner of the Social Security Administration denying plaintiff's application for Supplemental Security Income (“SSI”) benefits. (Rec.docs.16, 17, 19).

Brenda Aimee Smith, plaintiff herein, protectively filed the subject application for SSI benefits on July 8, 2009, alleging disability as of January 1, 1998. (Tr. pp. 22, 106).¹ In a Disability Report that appears in the record, the conditions resulting in plaintiff's inability to work were identified as depression, bi-polar disorder, anxiety, two herniated discs in the neck, back and spine injury, obsessive compulsive disorder, and suicidal tendencies. (Tr. pp. 120–129).² Plaintiff's application for SSI benefits was denied at the initial level of the Commissioner's administrative review process on October 9, 2009. (Tr. pp. 71–74). Pursuant to plaintiff's request, a hearing de novo before an Administrative Law Judge (“ALJ”) went forward on June 9, 2010 at which plaintiff, who was represented by counsel, and a Vocational Expert (“VE”) appeared and testified. (Tr. pp. 22, 39–68). On August 5, 2010, the ALJ issued a written decision in which she concluded that plaintiff was not disabled within the meaning of the Social Security Act. (Tr. pp. 19–38). The Appeals Council (“AC”) subsequently denied plaintiff's request for review of the ALJ's decision, thus making the ALJ's decision the final decision of the Commissioner. (Tr. pp. 3–7). It is from that unfavorable decision that the plaintiff seeks judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

In her cross-motion for summary judgment plaintiff frames the issues for judicial review as follows:

1. [t]he ALJ issued an unfavorable decision, and the Appeals council denied the claimant's request for review, without either having discussed why the evidence did not satisfy 20 C.F.R. 404, Subpart P, Appendix 1, Listing 1.04.

2. [t]he final decision of the Commissioner does not comply with 20 C.F.R. Section 416.927(d), and good cause was not shown to reject the opinion of the claimant's treating specialist.

3. [t]he claimant's allegations of restrictions in the use of her dominant upper extremity were improperly rejected without the assessment of the credibility which is required by the regulations.

4. [t]he vocational testimony does not carry the Commissioner's burden of proof at the final step in the sequential evaluation process, because the ALJ failed to accurately advise the vocational expert of the claimant's mental restrictions.

(Rec. doc. 16–1, p. 1).

Relevant to the issues to be decided by the Court are the following findings that were made by the ALJ:

1. [t]he claimant has not engaged in substantial gainful activity since July 8, 2009, the application date (20 CFR 416.971 et seq.).

2. [t]he claimant has the following severe impairments: status post anterior cervical decompression and fusion at C5–7, degenerative disc disease of the lumbar spine, and Bipolar Disorder II (20 CFR 416.920(c)).

3. [t]he claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

4. [a]fter careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work, generally defined in 20 CFR 416.967(b) as work requiring lifting/carrying no more than 10 pounds frequently and 20 pound occasionally, and no more than 6 hours of standing/walking in an 8 hour workday, with the additional nonexertional limitations of work requiring occasional crouching, crawling, and stooping, limited overhead reaching, no climbing of ladders, ropes, scaffolds, no work on vibrating/uneven surfaces, and work of a simple, routine nature with limited public contact.

5. [t]he claimant is unable to perform any past relevant work (20 CFR 416.965).

6. [t]he claimant was born on November 27, 1968 and was 40 years old, which is defined as a younger individual age 18–49, on the date the application was filed (20 CFR 416.963).

7. [t]he claimant has a limited education and is able communicate in English (20 CFR 416.964).

8. [t]ransferability of job skills is not material to the determination of disability because using the Medical–Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82–41 and 20 CFR Part 404, Subpart P, Appendix 2).

9. [c]onsidering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbersin the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).

10. [t]he claimant has not been under a disability, as defined in the Social Security Act, since July 8, 2009, the date the application was filed (20 CFR 416.920(g)).

(Tr. pp. 24, 25, 26, 32, 33).

Judicial review of the Commissioner's decision to deny SSI benefits is limited to two inquiries: (1) whether substantial evidence of record supports the Commissioner's decision, and (2) whether the decision comports with relevant legal standards. Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir.1992); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.1990); Fraga v. Bowen, 810 F.2d 1296, 1302 (5th Cir.1987). If the Commissioner's findings are supported by substantial evidence, they are conclusive and must be affirmed. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings exist to support the Commissioner's decision. Johnson v. Bowen, 864 F.2d 340, 343–44 (5th Cir.1988). Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Jones v. Heckler, 702 F.2d 616, 620 (5th Cir.1983). The Court may not reweigh the evidence or try the issues de novo, nor may it substitute its judgment for that of the Commissioner. Cook v. Heckler, 750 F.2d 391, 392 (5th Cir.1985). Conflicts in the evidence are for the Commissioner to resolve, not the courts. Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir.1983).

A claimant seeking SSI benefits bears the burden of proving that she is disabled within the meaning of the Social Security Act. Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.1988). Disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A). Once the claimant carries her initial burden, the Commissioner then bears the burden of establishing that the claimant is capable of performing substantial gainful activity and is, therefore, not disabled. Harrell, 862 F.2d at 475. In making this determination, the Commissioner utilizes the five-step sequential analysis set forth in 20 C.F.R. § 416.920, as follows:

1. an individual who is working and engaging in substantial gainful activity will not be found disabled regardless of the medical findings.

2. an individual who does not have a “severe impairment” will not be found to be disabled.

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.

4. if an individual is capable of performing the work that she has done in the past, a finding of “not disabled” must be made.

5. if an individual's impairment precludes her from performing her past work, other factors, including age, education, past work experience, and residual functional capacity, must be considered to determine if other work can be performed.

On the first four steps of the analysis, the claimant bears the initial burden of proving that she is disabled and must ultimately demonstrate that she is unable to perform the work that she has done in the past. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 2294 n. 5, 96 L.Ed.2d 119 (1987). If the analysis reaches the fifth step, the ALJ may establish that other work is available that the claimant can perform by relying on expert vocational testimony or other similar evidence to establish that such jobs exist. Fraga, 810 F.2d at 1304 (citing Lawler v. Heckler, 761 F.2d 195, 198 (5th Cir.1985)). Once the Commissioner demonstrates that the individual can perform other work, the burden then shifts back to the claimant to rebut that finding. Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir.1988); Fraga, 810 F.2d at 1302.

The documentary evidence admitted in the proceedings below ³ includes records of a clinical assessment of plaintiff that was...