Tate v. Colvin
| Decision Date | 12 September 2014 |
| Docket Number | CIVIL ACTION NO. 13-6552 SECTION "C" (2) |
| Parties | NICHELLE TATE v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY |
| Court | U.S. District Court — Eastern District of Louisiana |
Plaintiff, Nichelle Tate, seeks judicial review pursuant to Section 405(g) of the Social Security Act (the "Act") of the final decision of the Commissioner of the Social Security Administration ("Commissioner"), denying plaintiff's claim for supplemental security income benefits ("SSI") under Title XVI of the Act. 42 U.S.C. §§ 405(g), 1381a. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2(B).
Tate filed her application for SSI on July 6, 2011, alleging disability beginning August 15, 2010, due to "congested [sic] heart failure," hypertension, kidney failure, chest pain and blurred vision. (Tr. 55, 123, 127). After her claim was denied at the agency level, she requested a hearing before an Administrative Law Judge (ALJ), which was held on April 23, 2012. On May 10, 2012, the ALJ issued a decision denying the application for benefits. (Tr. 19-29). The Appeals Council denied plaintiff's request for review on January 23, 2013. (Tr. 11-13).
On July 3, 2013, Tate's counsel submitted to the Appeals Council a new brief and additional evidence consisting of a letter from DaVita Metairie Dialysis Center dated April 16, 2013. (Tr. 166-67). On August 29, 2013, the Appeals Council set aside its earlier decision so it might consider the new evidence, but it again denied the request for review. The Appeals Council found that the April 16, 2013, letter was not relevant to the time period of the ALJ's decision eleven months earlier. The Appeals Council returned the letter to plaintiff, and it is not in the record. (Tr. 4-7). After the Appeals Council denied review, the ALJ's decision became the Commissioner's final decision for purposes of this court's review.
Plaintiff filed a timely memorandum of facts and law. Record Doc. No. 18. Defendant filed a timely reply memorandum. Record Doc. No. 19.
Plaintiff contends that the ALJ made the following errors:
C. Substantial evidence does not support the ALJ's credibility finding.
Tate submitted new evidence with her memorandum. The court treats this as a motion to submit new evidence. Based on that evidence in combination with the entirerecord, she asks the court to find either that she is disabled or that the new evidence warrants a remand to the Commissioner for additional findings of fact.
Having considered the record, the submissions of the parties and the applicable law, and for the reasons discussed below, IT IS ORDERED that plaintiff's motion to supplement the record with new evidence is DENIED.
3. Plaintiff has the residual functional capacity to perform sedentary work, except she must have a sit/stand option and the ability to elevate her legs twice a day for ten minutes at a time.
4. Tate's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms. However, her statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.
5. She has no past relevant work.
6. Considering Tate's age, education, work experience and residual functional capacity, jobs exist in significant numbers in the national economy that she can perform, such as general office clerk, receptionist and interviewer.
8. She has not been under a disability, as defined in the Act, from May 16, 2011, the date of the application, through the date of the decision.
(Tr. 21-27).
The function of this court on judicial review is limited to determining whether there is substantial evidence in the record to support the final decision of the Commissioner as trier of fact and whether the Commissioner applied the appropriate legal standards in evaluating the evidence. Richard ex rel. Z.N.F. v. Astrue, 480 F. App'x 773, 776 (5th Cir. 2012) (citing Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005)); Stringer v. Astrue, 465 F. App'x 361, 363 (5th Cir. 2012) (citing Waters v. Barnhart, 276 F.3d 716, 716 (5th Cir. 2002)). Substantial evidence is more than a scintilla but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Richard ex rel. Z.N.F., 480 F. App'x at 776; Stringer, 465 F. App'x at 363-64; Perez, 415 F.3d at 461. This court may not reweigh the evidence in the record, try the issues de novo or substitute its judgment for the Commissioner's, even if the evidence weighs against the Commissioner's decision. Halterman ex rel. Halterman v. Colvin, No. 12-31099, 2013 WL 5913945, at *2 (5th Cir. May 9, 2013) (citing Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000)); Stringer, 465 F. App'x at 364. TheCommissioner, rather than the courts, must resolve conflicts in the evidence. Luckey v. Astrue, 458 F. App'x 322, 324 (5th Cir. 2011) (citing Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990)); Newton, 209 F.3d at 452.
The ALJ is entitled to make any finding that is supported by substantial evidence, regardless of whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91 (1992). Despite this court's limited function, it must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence supports it. Joubert v. Astrue, 287 F. App'x 380, 382 (5th Cir. 2008) (citing Perez, 415 F.3d at 461). Any findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ray v. Barnhart, 163 F. App'x 308, 311 (5th Cir. 2006) (citing Perales, 402 U.S. at 390); Perez, 415 F.3d at 461.
To be considered disabled and eligible for SSI, plaintiff must show that she is unable "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 Commissioner has promulgated regulations that provide procedures for evaluating a claim and determining disability. 20 C.F.R. §§ 404.1501 to 404.1599 & appendices, §§ 416.901 to 416.998 (2012). The regulations include a five-step evaluation process for determining whether an impairment preventsa person from engaging in any substantial gainful activity.1 Id. §§ 404.1520, 416.920; Alexander v. Astrue, 412 F. App'x 719, 720 (5th Cir. 2011) (citing Audler v. Astrue, 501 F.3d 446, 447 (5th Cir. 2007)); Perez, 415 F.3d at 461. The five-step inquiry terminates if the Commissioner finds at any step that the claimant is or is not disabled. Id.
The claimant has the burden of proof under the first four parts of the inquiry. If she successfully carries this burden, the burden shifts to the Commissioner to show that other substantial gainful employment is available in the national economy that the claimant is capable of performing. When the Commissioner shows that the claimant iscapable of engaging in alternative employment, the burden of proof shifts back to the claimant to rebut this finding. Alexander, 412 F. App'x 720-21; Perez, 415 F.3d at 461.
The court weighs four elements of proof when determining whether there is substantial evidence of disability: "'(1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) the claimant's age, education, and work history.'" Chrisner v. Astrue, 249 F. App'x 354, 356 (5th Cir. 2007) (quoting Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991)); accord Perez, 415 F.3d at 463.
Tate testified that she was 42 years old, is five feet six inches tall and weighs 230 pounds. (Tr. 36). She explained that she did not undergo scheduled heart tests because her sister died around that time and she wanted to be with her family. She stated that she followed up with her primary care physician, Dr. Vu, but she never had the heart tests.
Plaintiff testified that she takes her medications as prescribed. She said that the medicine she was taking was not strong enough and that her primary care physician "upgraded" her medicine. (Tr. 37-38). She stated that, although her blood pressure is uncontrollable, her doctor had it under control. She said her medications cause her to sleep.
Tate stated that she breathes very heavily if she walks or moves around a lot, so she cannot walk very far. She testified that she uses an asthma machine three times aday. She said her right leg gets numb and sometimes gives out. She stated that, once she takes her medicine, she stays in bed.
Plaintiff said she lived with her mother last year and helped with her mother's daycare business by changing diapers and feeding the children. She stated that it was not a job and that she just helped out occasionally because she was in the house. (Tr. 38). She testified...
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