United States District Court, M.D. Louisiana
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
RICHARD L. BOURGEOIS, Jr., Magistrate Judge.
Plaintiff, Doretha Harrell (Plaintiff), seeks judicial review of an unfavorable decision of the Commissioner of the Social Security Administration (Commissioner), pursuant to 42 U.S.C. § 405(g). Plaintiff appeals the Commissioner's denial of her application for disability insurance benefits "under Title II and part A of Title XVIII of the Social Security Act" (Tr. 170-71). For the reasons given below, the Court recommends that the Commissioner's decision be AFFIRMED and Plaintiff's appeal be DISMISSED with prejudice.
I. PROCEDURAL HISTORY
On September 30, 2008, Plaintiff filed two applications for benefits - one for supplemental security income (SSI) (Tr. 177-80); and another for disability insurance benefits (DIB) (Tr. 170-71), which is the subject of the current appeal. Both applications originally alleged an onset date of April 2, 2002. (Tr. 170, 177). The applications were initially denied and Plaintiff filed a timely request for a hearing that was held on January 14, 2010. (Tr. 32-36). No testimony was taken at the hearing. (Tr. 32-36). Instead, Plaintiff's attorney successfully requested that the April 2, 2002 onset date (alleged in both applications) be amended to September 30, 2008. (Tr. 34, 72). Before going on the record, the ALJ held "an informal" conference with Plaintiff's counsel where the ALJ "proposed a favorable decision with respect to Ms. Harrell's application for Supplemental Security Income... and withdrawal of the claim for Title II [(DIB)] benefits, based on an expired date last insured of March 31, 2007." (Tr. 34). After discussing the proposal with her attorney, Plaintiff agreed (Tr. 35-35). The ALJ issued a decision on March 4, 2010. (Tr. 71-76). The ALJ found Plaintiff became disabled on September 23, 2008 and was entitled to SSI benefits. (Tr. 72). Consistent with the hearing, the ALJ dismissed Plaintiff's Title II (DIB) application. (Tr. 72) ("On the basis of a prehearing conference... it was agreed that the onset date would be amended to [September 30, 2008].... [and] that the application for Title II benefits would be withdrawn based on a date last insured of March 31, 2007.").
On January 20, 2010, before the ALJ issued his decision, Plaintiff's attorney wrote to the ALJ. (Tr. 188). The letter explained that Plaintiff was now suffering from cancer and that in light of this:
Ms. Harrell has advised that she would like Your Honor to consider allowing her to prove her claim for Disability Insurance benefits with the date last insured of March 31, 2007, and therefore withdraws her consent to the onset date of September 30, 2008 - the date of the filing of the application for Supplemental Security Income.
At this point, I will ask that Your Honor hold the record open thirty days to allow me to medically develop the issue of pre-date last insured disability and brief same as well.
(Tr. 188). The ALJ's March 4, 2010 decision, however, did not mention counsel's letter or Plaintiff's request for consideration of her DIB application. And so, Plaintiff appealed the ALJ's dismissal of her DIB application to the Appeals Council on April 6, 2010. (Tr. Tr. 121-23).
The Appeals Council issued an order on August 22, 2011. (Tr. 77). The order granted Plaintiff's request for review, vacated the ALJ's order dismissing Plaintiff's DIB application, and remanded the case to the ALJ for further proceedings. (Tr. 77-80). On remand, the Appeals Council instructed that the ALJ "may take any further action needed to complete the administrative record and issue a new decision based on the claimant's application for title II [benefits]... and the issue of disability on and before March 31, 2007, the claimant's date last insured." (Tr. 79).
Following remand, a new hearing was held before a different ALJ on September 5, 2012. (Tr. 37-64). Plaintiff, represented by counsel, appeared and testified. (Tr. 42-59). Dr. Richard Galloway, a vocational expert (VE), also provided testimony. (Tr. 60-63).
Following the hearing, the ALJ issued an unfavorable decision on September 21, 2012. (Tr. 19-27). The ALJ found Plaintiff had not been under a disability from the alleged onset date of April 2, 2002 through March 31, 2007, the date last insured. (Tr. 20). Plaintiff's request for review was denied by the Appeals Council on September 4, 2013. (Tr. 4-6). The ALJ's decision rested as the final decision when the Appeals Council denied Plaintiff's request for review. See 20 C.F.R. § 404.981 ("The Appeals Council's decision, or the decision of the administrative law judge if the request for review is denied, is binding unless you... file an action in Federal district court...."). The ALJ's final decision denying Plaintiff's application for DIB benefits is now ripe for review under 42 U.S.C. § 405(g).
II. STANDARD OF REVIEW
This Court's review of the Commissioner's decision is limited to an inquiry into whether there is substantial evidence to support the findings of the Commissioner and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence has been defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938) (defining "substantial evidence" in the context of the National Labor Relations Act, 29 U.S.C. § 160(e)). The Fifth Circuit has further held that substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but no substantial evidence will be found only where there is a conspicuous absence of credible choices or no contrary medical evidence." Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983) (quotations omitted). Conflicts in the evidence are for the Commissioner "and not the courts to resolve." Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The court may not reweigh the evidence, try the case de novo, or substitute its own judgment for that of the Commissioner even if it finds that the evidence preponderates against the Commissioner's decision. See, e.g., Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) ("This is so because substantial evidence is less than a preponderance but more than a scintilla."); Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988) ("we must carefully scrutinize the record to determine if, in fact, such evidence is present; at the same time, however, we may neither reweigh the evidence in the record nor substitute our judgment for the Secretary's"); Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (same).
If the Commissioner's decision is supported by substantial evidence, then it is conclusive and must be upheld. Estate of Morris v. Shalala, 207 F.3d 744, 745 (5th Cir. 2000). If the Commissioner fails to apply the correct legal standards, or fails to provide a reviewing court with a sufficient basis to determine that the correct legal principles were followed, it is grounds for reversal. Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987).
III. ALJ'S DETERMINATION
In determining disability, the Commissioner, through the ALJ, works through a five-step sequential evaluation process. See 20 C.F.R. § 404.1520(a)(4). The burden rests upon the claimant throughout the first four steps of this five-step process to prove disability. If the claimant is successful in sustaining his or her burden at each of the first four steps, the burden shifts to the Commissioner at step five. See Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991) (explaining the five-step process). First, the claimant must prove he is not currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). Second, the claimant must prove his or her impairment is "severe" in that it "significantly limits your physical or mental ability to do basic work activities...." 20 C.F.R. § 404.1520(c). At step three the ALJ must conclude the claimant is disabled if he proves that his or her impairments meet or are medically equivalent to one of the impairments contained in the Listing of Impairments. See 20 C.F.R. § 404.1520(d) (step three of sequential process); 20 C.F.R. pt. 404, subpt. P, app. 1 (Listing of Impairments). Fourth, the claimant bears the burden of proving he is incapable of meeting the physical and mental demands of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant is successful at all four of the preceding steps then the burden shifts to the Commissioner to prove, considering the claimant's residual functional capacity, age, education and past work experience, that he or she is capable of performing other work. 20 C.F.R § 404.1520(g)(1). If the Commissioner proves other work exists which the claimant can perform, the claimant is given the chance to prove that he or she cannot, in fact, perform that work. Muse, 925 F.2d at 789.
Here, the ALJ issued an unfavorable decision based on the evidence contained in the administrative record relevant to the period between April 2, 2002 (the alleged onset date) and March 31, 2007 (the date last insured). ...