Tulowiecki v. Comm'r, CIVIL ACTION NO. 2:12CV731
| Decision Date | 30 September 2014 |
| Docket Number | CIVIL ACTION NO. 2:12CV731 |
| Parties | MARK TULOWIECKI v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION |
| Court | U.S. District Court — Eastern District of Texas |
On November 21, 2012, Plaintiff initiated this civil action pursuant to the Social Security Act (The Act), Section 205(g) for judicial review of the Commissioner's denial of Plaintiff's application for Social Security benefits.
On October 15, 2010, Plaintiff filed a Title II application, alleging a disability with an onset date of October 20, 2009. See Transcript ("Tr.") at 10 (Administrative Law Judge (ALJ) decision). The claim was denied initially and denied again on reconsideration. Id. The Plaintiff sought review of the denial. An administrative hearing was conducted before the ALJ on August 31, 2011. See Tr. at 33 (hearing transcript). Plaintiff appeared and testified, represented by counsel. In addition, a vocational expert ("VE"), Charles Smith, also testified. No medical expert was called to testify.
The ALJ issued an unfavorable decision on September 21, 2011. Plaintiff sought review. On September 24, 2012, the Appeals Council denied review. See Tr. at 1. Therefore, the ALJ's decision became the Commissioner's final decision. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000). Plaintiff then filed the instant action for review by this Court.
Title II of the Act provides for federal disability insurance benefits. Judicial review of the denial of disability benefits under section 205(g) of the Act, 42 U.S.C. § 405(g), is limited to "determining whether the decision is supported by substantial evidence in the record and whether the proper legal standards were used in evaluating the evidence." Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (per curiam); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990); Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991) (per curiam).
A finding of no substantial evidence is appropriate only where there is a conspicuous absence of credible choices or no contrary medical evidence. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988) (per curiam); Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983) (per curiam). Accordingly, the Court "may not reweigh the evidence in the record, nor try the issues de novo, nor substitute [the Court's] judgment for the [Commissioner]'s, even if the evidence preponderates against the [Commissioner]'s decision." Bowling, 36 F.3d at 434; Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (per curiam); see Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993); Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992); Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985). Rather, conflicts in the evidence are for the Commissioner to decide. Spellman, 1 F.3d at 360; Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990); Anthony, 954 F.2d 289, 295 (5th Cir. 1992); Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir. 1983). A decision on the ultimate issue of whether a claimant is disabled, as defined in the Act, rests with the Commissioner. Newton v. Apfel, 209 F.3d 448, 455-56 (5th Cir. 2000); SSR 96-5p.
"Substantial evidence is more than a scintilla but less than a preponderance - that is, enough that a reasonable mind would judge it sufficient to support the decision." Pena v. Astrue, 271 Fed. Appx. 382, 383 (5th Cir.2003); Falco v. Shalala, 27 F.3d 160, 162 (5th Cir.1994). Substantial evidence includes four factors: (1) objective medical facts or clinical findings; (2) diagnoses ofexamining physicians; (3) subjective evidence of pain and disability; and (4) the plaintiff's age, education, and work history. Fraga v. Bowen, 810 F.2d at 1302, n.4 (5th Cir. 1987). If supported by substantial evidence, the decision of the Commissioner is conclusive and must be affirmed. Richardson, 402 U.S. at 390, 91 S.Ct. at 1422. The Court, however, must do more than "rubber stamp" the ALJ's decision; the Court must "scrutinize the record and take into account whatever fairly detracts from the substantiality of evidence supporting the [Commissioner]'s findings." Cook, 750 F.2d 391, 393 (5th Cir. 1985).
A claimant for disability has the burden of proving a disability. Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). The Act defines "disability" as an "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 can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 416(I)(1)(A); 42 U.S.C. § 423(d)(1)(A). A "physical or mental impairment" is an anatomical, physiological, or psychological abnormality which is demonstrable by acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).
In order to determine whether a claimant is disabled, the Commissioner must utilize a five-step, sequential process. Villa, 895 F.2d at 1022. A finding of "disabled" or "not disabled" at any step of the sequential process ends the inquiry. Id.; see Bowling, 36 F.3d at 435; Harrel, 862 F.2d at 475. Under the five-step sequential analysis, the Commissioner must determine at Step One whether the claimant is currently engaged in substantial gainful activity. At Step Two, the Commissioner must determine whether one or more of the claimant's impairments are severe. At Step Three, the Commissioner must determine whether the claimant has an impairment or combination of impairments that meet or equal one of the listings in Appendix I. Prior to moving to Step Four, the Commissioner must determine the claimant's Residual Functional Capacity ("RFC"), or the most that the claimant can do given hisimpairments, both severe and non-severe. Then, at Step Four, the Commissioner must determine whether the claimant is capable of performing his past relevant work.
Finally, at Step Five, the Commissioner must determine whether the claimant can perform other work available in the local or national economy. 20 C.F.R. § 416.920(a). An affirmative answer at Step One or a negative answer at Steps Two, Four, or Five results in a finding of "not disabled." See Villa, 895 F.2d at 1022. An affirmative answer at Step Three, or an affirmative answer at Steps Four and Five, creates a presumption of disability. Id. The burden of proof is on the claimant for the first four steps, but shifts to the Commissioner at Step Five if the claimant shows that he cannot perform his past relevant work. Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989) (per curiam).
To obtain Title II disability benefits, Plaintiff must show that he was disabled on or before the last day of his insured status. Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir.1981), cert. denied, 455 U.S. 912 (1982).
The ALJ made the following findings in the September 21, 2011 decision:
The claimant has the following severe impairments: Spondylosis, Myalgia, and Myositis (20 C.F.R. § 404.1520[c]).
The claimant 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. §§ 404.15209d), 404.1525, 404.1526).
The claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) except he is limited to occasional bending, stooping or crouching and no squatting, crawling, kneeling, or climbing.
The claimant is unable to perform any past relevant work (20 CFR § 404.1565).
The ALJ determined that Plaintiff was not disabled under §1614 (a)(3)A) of the Social Security
Act. See Tr. at 17.
Plaintiff was born on March 29, 1960. See Tr. at 15. He was forty-nine years old on his alleged onset date. See Id. He attended high school through the 11th grade and obtained a GED later in life. See Tr. at 39. He also obtained vocational training in air conditioning systems. See Tr. at 39. His past relevant work experience was as a maintenance man, clerk and salesman. See Tr. at 15.
Plaintiff asserts that he cannot work because he suffers from lumbosacral spondylosis, cervical disc degeneration, joint pain, lumbago, myalgia, myositis, hypertension, hyperlipidemia, gastroesophageal reflux disease ("GERD"), and depression. The ALJ found that Plaintiff's severe impairments are Spondylosis, Myalgia, and Myositis. See Tr. at 12.
Plaintiff presents the following issue for review:
Plaintiff has a longstanding history of injury to his lumbar spine with associated chronic pain; exacerbated by motor vehicle accidents in 2001 and 2010. See Tr. at 233, 362-366, 370-371, 392-393, 477. His condition has deteriorated, with increased frequency with which he has presented to theemergency department. Since 2009, Plaintiff has sought emergency treatment for back and neck pain on five occasions. See Tr. at 207-210, 211-214, 215-218, 222-225, 335-338. In October 2008, Plaintiff began treatment at the Affordable Healthcare Clinic in Waskom, Texas and seen by Kenneth Volk, ...
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