Theriot v. Colvin, CIVIL ACTION NO. 13-0453-SM-SS

• Decision Date: 28 October 2014
• Docket Number: CIVIL ACTION NO. 13-0453-SM-SS
• Parties: CHRISTINE THERIOT v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION
• Court: U.S. District Court — Eastern District of Louisiana

CHRISTINE THERIOT v. CAROLYN W. COLVIN, ACTINGCOMMISSIONER OF THE SOCIALSECURITY ADMINISTRATION

CIVIL ACTION NO. 13-0453-SM-SS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

October 28, 2014

REPORT AND RECOMMENDATION

The plaintiff, Christine Theriot ("Theriot"), 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 (the "Commissioner") denying her claim for supplemental security income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 U.S.C. § 1382(a)(3).

PROCEDURAL HISTORY

A prior claim was denied by the Appeals Council on May 28, 2004. There is no record of an appeal to federal court of that claim. R. 256.

On October 24, 2008, Theriot submitted an application for SSI. She reported that her alleged disability began on May 1, 2008. R. 225-28. She reported problems sitting, standing, bending, twisting and picking up things. She had lost 50% of the hearing in each ear. She took medication for depression. She used an inhaler for asthma. R. 260.

On February 19, 2009, the state agency determined that Theriot was not disabled. R. 84. On July 13, 2009, there was a hearing before an Administrative Law Judge ("ALJ"). R. 67. Theriot was represented by counsel. A vocational expert testified. R. 78-82. On August 28, 2009, there was an unfavorable decision. R. 89-99. The ALJ found that considering Theriot'sresidual functional capacity ("RFC"), there were jobs that she could perform. R. 97. On July 30, 2010, the Appeals Council remanded the case. It noted that the ALJ's hypothetical question to the vocational expert was not identical to the RFC found and therefore, it was not clear whether there were jobs that existed in significant numbers that Theriot could perform. R. 101.

On March 23, 2011, the ALJ held a second hearing. R. 43. Theriot was represented by counsel. The ALJ determined not to proceed with the hearing because the file was incomplete. R. 59-60. On June 8, 2011, there was a third hearing. Theriot was represented by counsel. A vocational expert testified. R. 26-42. On September 14, 2011, the ALJ issued an unfavorable decision. R. 9-20. On January 9, 2013, the Appeals Council denied the request for review. R. 1-3.

On March 8, 2013, Theriot filed a complaint. Rec doc. 1. On January 7, 2014, Theriot filed proof of service of the summons and complaint. Rec. doc. 22. Theriot filed a motion for summary judgment before the Commissioner filed an answer. Rec. doc. 5. The Commissioner filed an answer and the administrative record. Rec. docs. 26 and 27. The parties filed cross-motions for summary judgment. Rec. docs. 29 and 31.

STATEMENT OF ISSUES ON APPEAL

Whether the ALJ complied with the Appeals Council's July 30, 2010 order of remand?

THE COMMISSIONER'S FINDINGS

In the September 14, 2011 decision, the ALJ made the following findings:

1. Theriot has not engaged in substantial gainful activity since August 7, 2008, the application date (20 C.F.R. 416.971 et seq.).

2. Theriot has the following severe impairments: hearing loss, musculoskeletal pain and dysthymia (20 C.F.R. 416.920(c)).

3. Theriot does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 416.920(d), 416.925 and 416.926).

4. Theriot has the RFC to perform light work as defined in 20 C.F.R. 416.967(b). Theriot is a younger individual with a high school education who is able to read, write, add, and subtract, and who from an exertional standpoint is able to perform work at the sedentary and light levels. She can work only rarely around dust, fumes and gases or around heat and humidity where the temperature would be above 85 degrees. She could not work continuously outside. She has slight limitations in interacting with the general public; slight to moderate limitations in her ability to maintain attention and concentration for extended periods; and slight to moderate limitations in her ability to complete work tasks in a normal work day at a consistent pace. She is able to use short term memory and is able to understand, remember and carry out simple instructions, and to engage in one/two-step process.

5. Theriot has no past relevant work (20 C.F.R. 416.965).

6. Theriot was born in 1980 and was 27 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 C.F.R. 416.963).

7. Theriot has at least a high school education and is able to communicate in English (20 C.F.R. 416.964).

8. Transferability of job skills is not an issue because Theriot does not have past relevant work (20 C.F.R. 416.968).

9. Considering Theriot's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Theriot can perform (20 C.F.R. 416.969 and 416.969(a)).

10. Theriot has not been under a disability, as defined in the Act, since August 7, 2008, the date the application was filed (20 C.F.R. 416.920(g)).

R. 12-21 (emphasis added).

ANALYSIS

a. Standard of Review.

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 theevidence. Perez v. Barnhart, 415 F.3d 457, 461 (5^th Cir. 2005); Newton v. Apfel, 209 F.3d 448, 452 (5^th Cir. 2000). 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, 91 S.Ct. 1420, 1427 (1971); Perez, 415 F.3d at 461. Alternatively, substantial evidence may be described as that quantum of relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Carey v. Apfel, 230 F.3d 131, 135 (5^th Cir. 2000). This court may not re-weigh the evidence, try the issues de novo or substitute its judgment for the Commissioner's. Perez, 415 F.3d at 461; Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).

The administrative law judge 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, 113, 112 S.Ct. 1046, 1060 (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 exists to support it. Villa, 895 F.2d at 1022; Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). Any findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).

To be considered disabled and eligible for disability insurance benefits, 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), 1382c(a)(3)(A). The Commissioner has promulgated regulations that provide procedures for evaluating a claim and determining disability. 20 C.F.R. §§ 404.1501 to404.1599 & appendices, §§ 416.901 to 416.998 (1997). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity. Id. §§ 404.1520, 416.920; Perez v. Barnhart, 415 F.3d at 461; Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. den. 514 U.S. 1120, 115 S. Ct. 1984 (1995).¹ The five-step inquiry terminates if the Commissioner finds at any step that the claimant is or is not disabled. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).

The claimant has the burden of proof under the first four parts of the inquiry. Id. 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, which the claimant is capable of performing. Greenspan, 38 F.3d at 236; Kraemer v. Sullivan, 885 F.2d 206, 208 (5th Cir. 1989). When the Commissioner shows that the claimant is capable of engaging in alternative employment, "the ultimate burden of persuasion shifts back to the claimant." Id.; accord Selders, 914 F.2d at 618. "In determining whether substantial evidence of disabilityexists, this court weighs four factors: (1) objective medical evidence; (2) diagnoses and opinions; (3) the claimant's subjective medical evidence of pain and disability; and (4) the claimant's age, education, and work history." Perez v. Barnhart, 415 F.3d at 462. "The Commissioner, rather than the courts, must resolve conflicts in the evidence." Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995).

b. Testimony at the July 13, 2009 Hearing.

Theriot was 28 at the time of the hearing. R. 71. She completed high school. R. 71. She could read, write, add and subtract. R. 71. She had a driver's license. R. 71. After completing high school, she worked as a dishwasher and cook at a family restaurant. R. 71. She also worked as a painter and at a gas station. R. 71. She was not working at the time of the hearing. R. 72. She last worked for three to five years before the hearing. R. 72.

Theriot lived on food stamps, child support for her daughter, who was four, and some help from her mother. R. 72. She and her daughter lived in a trailer on her mother's property. R. 72. Her daughter was entering school that fall. R. 72.

Theriot wore hearing aids in both ears from when she was 8 years old until she was 23. The hearing aids had broken and she could not afford to replace them. R. 73.

Theriot could not work because she could not lift anything. When she lifted her arms up...