United States District Court, Eastern District of Louisiana
For Michael T Bell, Plaintiff: David B. Wilson, LEAD ATTORNEY, Barkan, Neff, Handelman, Meizlish, LLP, New Orleans, LA.
For Social Security Administration, Carolyn W. Colvin, Acting Commissioner, Defendant: Jason M. Bigelow, U.S. Attorney's Office (New Orleans), New Orleans, LA.
REPORT AND RECOMMENDATION
SALLY SHUSHAN, United States Magistrate Judge.
The plaintiff, Michael Bell (" Bell"), 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 his claim for disability insurance benefits and a period of disability under Title II of the Social Security Act (" Act"), 42 U.S.C. § 423, as well as his claim for supplemental security income (" SSI") under Title XVI of the Act, 42 U.S.C. § 1382(a)(3).
In 2009, Bell submitted applications for disability benefits. R. 246-255. They were denied. The ALJ issued an unfavorable decision on August 27, 2010. R. 50-63.
On December 27, 2011, the Appeals Council remanded the decision to the ALJ because: (1) new and material evidence relating to possible mental impairments was received; and (2) the hearing decision did not contain an adequate evaluation of Bell's alleged illiteracy. R. 86-90. After a hearing on May 2, 2012 (R. 8-20), the ALJ issued an unfavorable decision. R. 91-115. On August 22, 2013, the Appeals Council denied Bell's request for review. R. 1-7.
On October 25, 2013, Bell filed a complaint in federal court. Rec. doc. 1. The parties submitted cross-motions for summary judgment. Rec. docs. 12 and 13. Bell submitted a response to the Commissioner's motion. Rec. doc. 15.
STATEMENT OF ISSUES ON APPEAL
Issue No. 1. Whether substantial evidence supports the finding that Bell has past work as a boat pilot and therefore is not mentally retarded or illiterate?
Issue No. 2. Whether substantial evidence supports the finding that Bell does not meet Listing 12.05 C for mental retardation?
Issue No. 3. Did the ALJ err by failing to include non-exertional limitations in the residual functional capacity (" RFC") and by failing to obtain vocational expert testimony concerning non-exertional limitations?
Issue No. 4. Did the ALJ err in finding that Bell had the RFC to perform the full range of medium work as defined in 20 C.F.R. § § 404.1567(c) and 416.967(c)?
Issue No. 5. Whether Grid Rule 203.18 directs a finding of not disabled?
THE COMMISSIONER'S FINDINGS
The ALJ made the following findings:
1. Bell met the insured status requirements of the Act through December 31, 2011.
2. Bell has not engaged in substantial gainful activity since July 1, 2009, the alleged onset date (20 C.F.R. § § 404.1571 et seq., and 416.971 et seq.).
3. Bell has the following severe impairment: Degenerative Disc Disease (20 C.F.R. § § 404.1520(c) and 416.920(c)). This is a severe impairment within the meaning of Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985), and the Regulations.
4. Bell does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § § 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. Bell has the RFC to perform the full range of medium work as defined in 20 C.F.R. § § 404.1567(c) and 416.967(c).
6. Bell is capable of performing past relevant work as a tugboat driver (boat pilot), as he actually performed it. This work does not require the performance of work-related activities precluded by Bell's RFC (20 C.F.R. § § 404.1565 and 416.965).
7. Bell has not been under a disability, as defined in the Act, from July 1, 2009, through the date of this decision (20 C.F.R. § § 404.1520(f) and 416.920(f)).
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 the evidence. Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005); Newton v. Apfel, 209 F.3d 448, 452 (5th 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, 28 L.Ed.2d 842 (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 (5th 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, 117 L.Ed.2d 239 (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 he 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 to 404.1599 & 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, 131 L.Ed.2d 871 (1995). 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 he 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 disability exists, 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 August 25, 2010 Hearing.
Present at the hearing were Bell, his counsel, and a vocational expert. R. 21. Bell's counsel reported that the amended onset date was June 29, 2009 which was the last day he worked. R. 27.
At the time of the hearing, Bell was 49 years old. R. 24. He received social promotions through the seventh or eighth grade. R. 26. He went to Southeastern Louisiana Hospital for help learning to read. R. 26. He described his ability to read as " very, very little." R. 29. He could not spell. R. 29. If he was given written instructions, he had to have someone else explain the instructions to him. R. 29.
Bell had a driver's license. R. 32. He got it when he was 15 years old. Someone read the test to him. Since then he kept the license up. He never took another test. R. 45. He did not drive when he was on medication. R. 32. He only wore glasses to be able to see up close and did not require them for distance. R. 32.
He was employed by Pearl River Navigation. R. 25. Bell drove a boat (similar to a tug boat) pushing barges around a shipyard. He did painting and other things as well. R. 25. He began doing that type of work when he was 18 years old. R. 25. He never had a license to drive the boat. R. 34 and 37. He got the job because he had worked as a laborer or deckhand. He was moving stuff around the shipyard. R. 34. Some of the boats had steering wheels. Some of them had sticks that were used to operate the boat. R. 34. He only drove them around the yard. R. 35. He navigated by sight. R. 35.
After September 11, 2001, he could not drive the boats because he did not have a license and could not obtain one. R. 35. After 9/11, he did things that did not require a license, like painting and helping to tie up the boat. R. 36. When he painted the boats, he used a brush and roller with oil-based paint. He did not use a sprayer. R. 36. He painted the outside of the boats. R. 37. He stopped working when his neck gave him problems. He could not be around people. He could not read or write. R. 25-26. Bell last worked from January through June 2009. R. 24 and 27.
Bell went to a psychiatrist about once a month. He was taking medication and doing well with the psychiatrist. R. 28. He saw a counselor as well. R. 28. He saw another doctor for pain. R. 28. He had severe problems in his neck and lower back. R. 29. The doctor told him he would need surgery one day. R. 31. He took medication for his neck pain. R. 31-32.
The pain in his neck limited his ability to perform physical activities. R. 29. Bell could not walk more than a couple of blocks before he had to sit down. R. 29-30. He could stand for no more than 30 to 40 minutes before he had to lean against a wall. He could sit for no more than 30 to 40 minutes before he had to walk around. R. 30. He took pain medication for his neck and back. R. 30. It made him tired. R. 30-31. In a typical day, Bell walked a bit, lay on the couch, and sat down. R. 31. He could wash clothes. R. 31. He could lift no more than about 10 to 20 pounds. R. 31. He did not go to church. R. 31. People that lived across the street helped him. R. 45-46.
The vocational expert testified that a shipyard laborer was the DOT title that encompassed all of the activities Bell said he performed for the shipyard. R. 38. The DOT did not recognize a job title for a person operating a boat in an unlicensed capacity. R. 38. In a licensed capacity, the title is tugboat pilot or captain. R. 38.
In response to the ALJ's hypothetical question (which did not include any restrictions for literacy), the expert testified that the person would not be able to perform Bell's past work. R. 39. Such a person (without literacy restrictions) could perform light duty jobs ...