Varnado v. Colvin

• Decision Date: 11 May 2015
• Docket Number: CIVIL ACTION NUMBER: 14-1581 SECTION: "J"(5)
• Parties: LARRY VARNADO v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION
• Court: U.S. District Court — Eastern District of Louisiana

LARRY VARNADO v. CAROLYN W. COLVIN, ACTING COMMISSIONER

OF THE SOCIAL SECURITY ADMINISTRATION

CIVIL ACTION NUMBER: 14-1581 SECTION: "J"(5)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

May 11, 2015

REPORT AND RECOMMENDATION

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 applications for Disability Insurance Benefits ("DIB") and for Supplemental Security Income ("SSI") benefits based upon disability. (Rec. docs. 9, 10).

Larry Varnado, Plaintiff herein, filed the subject applications for DIB and for SSI benefits on January 6, 2012, with a protective file date of December 27, 2011, alleging disability as of June 6, 2009. (Tr. pp. 173-179, 180-185, 198).¹ In a Disability Report that appears in the administrative record below, the conditions limiting Plaintiff's ability to work were identified as complications from a stroke, high blood pressure and cholesterol, hernia surgery, and bad nerves in the left arm. (Tr. p. 202). Plaintiff's applications for DIB and for SSI benefits were denied at the initial level of the Commissioner's administrative review process on April 12, 2012. (Tr. pp. 99-102). Pursuant to Plaintiff's request, a hearing de novo before an Administrative Law Judge ("ALJ") went forward on April 8, 2013at which Plaintiff (who was represented by counsel) and a Vocational Expert ("VE") appeared and testified. (Tr. pp. 30-76). On April 25, 2013, the ALJ issued a written decision in which he concluded that Plaintiff was not disabled within the meaning of the Social Security Act. (Tr. pp. 16-29). The Appeals Council ("AC") subsequently denied Plaintiff's request for review of the ALJ's decision on June 18, 2014, thus making the ALJ's decision the final decision of the Commissioner. (Tr. pp. 1-5). 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 his cross-motion for summary judgment, Plaintiff frames the issues for judicial review as follows:

I. The ALJ did not apply the correct legal standard in assessing Plaintiff's residual functional capacity.

II. The ALJ failed to apply Medical Vocational Rule 201.14 which does not comport with legal standards.

(Rec. doc. 9-1, pp. 3, 5).

Relevant to the resolution of the foregoing issues are the following findings that were made by the ALJ:

1. [t]he claimant meets the insured status requirements of the Social Security Act through December 31, 2013.

2. [t]he claimant has not engaged in substantial gainful activity since December 17, 2011, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. [t]he claimant has the following severe impairments: hypertension and obesity (20 CFR 404.1520(c) and 416.920(c)).

4. [t]he claimant does not have an impairment or combination of impairments that meets or medically equals the severityof one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. [a]fter careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he is limited to occasional climbing of ramps and stairs; is precluded from climbing ladders, ropes, and scaffolds; is limited to frequent balancing; and is limited to occasional stooping, kneeling, crouching, and crawling.

6. [t]he claimant is capable of performing past relevant work as a security guard and self-service auto station attendant. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 416.965).

7. [t]he claimant has not been under a disability, as defined in the Social Security Act, from December 17, 2011, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).

(Tr. pp. 21, 22, 25, 26).

Judicial review of the Commissioner's decision to deny DIB or SSI benefits is limited under 42 U.S.C. §405(g) 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 (5^th Cir. 1992); Villa v. Sullivan, 895 F.2d 1019, 1021 (5^th Cir. 1990); Fraga v. Bowen, 810 F.2d 1296, 1302 (5^th 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 (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 (5^th Cir. 1988). Substantial evidence is more than ascintilla, 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 (5^th 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 (5^th Cir. 1985). Conflicts in the evidence are for the Commissioner to resolve, not the courts. Patton v. Schweiker, 697 F.2d 590, 592 (5^th Cir. 1983).

A claimant seeking DIB or SSI benefits bears the burden of proving that he is disabled within the meaning of the Social Security Act. Harrell v. Bowen, 862 F.2d 471, 475 (5^th 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. §§423(d)(1)(A) and 1382c(a)(3)(A). Once the claimant carries his 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 uses the five-step sequential analysis set forth in 20 C.F.R. §§404.1520 and 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 he has done in the past, a finding of "not disabled" must be made.5. if an individual's impairment precludes him from performing his 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 he is disabled and must ultimately demonstrate that he is unable to perform the work that he has done in the past. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 2294 n. 5 (1987). In determining whether a claimant is capable of performing the work that he has done in the past, the ALJ is required to assess the demands of the prior work and to compare those demands to the claimant's present capabilities. Villa, 895 F.2d at 1022; Hollis v. Bowen, 837 F.2d 1378, 1386 (5^th Cir. 1988); Epps v. Harris, 624 F.2d 1267, 1274 (5^th Cir. 1980). The assessment of the demands of a claimant's prior work "... may rest on descriptions of past work as actually performed or as generally performed in the national economy." Villa, 895 F.2d at 1022 (citing Jones v. Bowen, 829 F.2d 524, 527 n. 2 (5^th Cir. 1987)). A finding that the claimant is disabled or is not disabled at any point in the five-step review process is conclusive and terminates the Commissioner's analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5^th Cir. 1987).

Plaintiff's first challenge to the Commissioner's decision is that the ALJ applied an incorrect legal standard in assessing his residual functional capacity ("RFC") to work. Plaintiff argues that he "... has additional limitations that are not contained in the RFC assessment" -- primarily based on the opinions of the consultative examiner, Dr. Rogelo Casama -- that he suffers from uncontrolled, unimproving hypertension that persists despite treatment, that he experiences persistent paresthesias in both of his lower extremities, and that he cannot walk more than a block without experiencing pain. Hadthese additional limitations been properly considered, Plaintiff maintains, he would have been properly found to be limited to sedentary-level work and thus disabled under Rule 201.14 of the Medical-Vocational Guidelines given his age, education, and work experience. (Rec. doc. 9-1, pp. 3-4).

In conducting the five-step analysis required by §§404.1520 and 416.920, the ALJ in the present case found that Plaintiff had not worked since the amended alleged onset date of December 17, 2011 and that he suffered from severe impairments in the form of hypertension and obesity. (Tr. p. 21). However, those impairments, whether considered singly or in combination, failed to satisfy the criteria of any of those set forth in the Listing of Impairments. (Tr. p. 22). Having so found, the Regulations mandated that the ALJ make an assessment of Plaintiff's RFC, a term of art that embraces a claimant's ability to work in spite of his impairments. 20 C.F.R. §§404.1520(e), 404.1545, 416.920(e), 416.945. Just like the ultimate decision of whether or not a claimant is disabled, the responsibility for determining a claimant's RFC is reserved to the Commissioner and at the hearing...