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Locure v. Colvin

United States District Court, E.D. Louisiana

March 19, 2015

WILLIAM LOCURE, JR
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY. SECTION

FINDINGS AND RECOMMENDATION

JOSEPH C. WILKINSON, Jr., Magistrate Judge.

Plaintiff, William Locure, Jr., 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 ("Commissioner"), denying plaintiff's claim for supplemental security income benefits ("SSI") under Title XVI of the Act. 42 U.S.C. §§ 405(g), 1381a. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2(B).

I. PROCEDURAL HISTORY

Locure filed his application for SSI on November 28, 2011, alleging disability beginning July 24, 1991, due to burns over 52 percent of his body. (Tr. 98, 120, 124). After his claim was denied at the agency level, he requested a hearing before an Administrative Law Judge (ALJ), which was held on September 18, 2012. The ALJ issued a decision denying the application for benefits on February 5, 2013. (Tr. 12-21). The Appeals Council denied plaintiff's request for review on April 17, 2014 (Tr. 1-3), and the All's decision became the Commissioner's final decision for purposes of this court's review.

Plaintiff filed a timely memorandum of facts and law. Record Doc. No. 14. Defendant filed a timely reply memorandum. Record Doc. No. 15.

II. STATEMENT OF ISSUES ON APPEAL

Plaintiff contends that the All made the following errors:

A. Substantial evidence does not support the ALJ's finding that Locure's burns with skin grafts do not cause any limitations.
B. Substantial evidence does not support the ALJ's finding that plaintiff is capable of making simple, work-related decisions and routine workplace changes, and these findings are based on a legally improper medical opinion evaluation.

III. ALF'S FINDINGS RELEVANT TO ISSUES ON APPEAL

1. Locure has a severe impairment of major depressive disorder with psychosis.
2. He has a history of burns and drug abuse, in remission by testimony. There is no medical evidence that the history of burns affects his functioning. Plaintiff's history of burns is a nonsevere impairment.
3. He 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, App. 1, including specifically Listing 12.04 for affective disorders.
4. Locure has the residual functional capacity to perform a full range of work at all exertional levels, with the following nonexertional limitations: the work environment must be free of fast-paced production requirements. He could make simple work-related decisions and routine workplace changes, have occasional direct interaction with the public, co-workers and supervisors, and concentrate for two-hour blocks of time.
5. Plaintiff's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms. However, his statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible.
6. He has no past relevant work.
7. Considering Locure's age, education, work experience and residual functional capacity, jobs exist in significant numbers in the national economy that he can perform, such as janitor and cleaner, groundskeeper and dishwasher.
8. Plaintiff has not been under a disability, as defined in the Act, since November 28, 2011, the date of his application.

(Tr. 14-20).

IV. ANALYSIS

A. Standards 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. Richard ex rel. Z.N.F. v. Astrue, 480 F.Appx. 773, 776 (5th Cir. 2012) (citing Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005)); Stringer v. Astrue, 465 F.Appx. 361, 363 (5th Cir. 2012) (citing Waters v. Barnhart, 276 F.3d 716, 716 (5th Cir. 2002)). 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 (1971); Richard ex rel. Z.N.F., 480 F.Appx. at 776; Stringer, 465 F.Appx. at 363-64; Perez, 415 F.3d at 461. This court may not reweigh the evidence in the record, try the issues de novo or substitute its judgment for the Commissioner's, even if the evidence weighs against the Commissioner's decision. Halterman ex rel. Halterman v. Colvin, No. 12-31099, 2013 WL 5913945, at *2 (5th Cir. May 9, 2013) (citing Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000)); Stringer, 465 F.Appx. at 364. The Commissioner, rather than the courts, must resolve conflicts in the evidence. Luckey v. Astrue, 458 F.Appx. 322, 324 (5th Cir. 2011) (citing Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990)); Newton, 209 F.3d at 452.

The ALJ is entitled to make any finding that is supported by substantial evidence, regardless ofwhether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91 (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 supports it. Joubert v. Astrue, 287 F.Appx. 380, 382 (5th Cir. 2008) (citing Perez, 415 F.3d at 461). Any findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ray v. Barnhart, 163 F.Appx. 308, 311 (5th Cir. 2006) (citing Perales, 402 U.S. at 390); Perez, 415 F.3d at 461.

To be considered disabled and eligible for SSI, 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). 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 (2012). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity.[1] Id . §§ 404.1520, 416.920; Alexander v. Astrue, 412 F.Appx. 719, 720 (5th Cir. 2011) (citing Audler v. Astrue, 501 F.3d 446, 447 (5th Cir. 2007)); Perez, 415 F.3d at 461. The five-step inquiry terminates if the Commissioner finds at any step that the claimant is or is not disabled. Id.

The claimant has the burden of proof under the first four parts of the inquiry. 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 that the claimant is capable of performing. When the Commissioner shows that the claimant is capable of engaging in alternative employment, the burden of proof shifts back to the claimant to rebut this finding. Alexander, 412 F.Appx. 720-21; Perez, 415 F.3d at 461.

The court weighs four elements of proof when determining whether there is substantial evidence of disability: "(1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) the claimant's age, education, and work history.'" Chrisner v. Astrue, 249 F.Appx. 354, 356 (5th Cir. 2007) (quoting Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991)); accord Perez, 415 F.3d at 463.

B. Factual Background

Locure testified that he attended the eleventh grade in school and did not receive a GED or any vocational training. He stated that he was incarcerated two years ago on a drug charge and was released in November 2011. He said he no longer has a drug problem and has not used illegal drugs since 2007. (Tr. 29).

Plaintiff stated that he last held a full-time job in 1986. He testified that it was hard to get a job and he could not keep a job because everyone was against him. He said he did not look for a job after he was released from prison in 2011. He stated that he was just trying to get his medicine at that time because he was having problems at home. He said he receives mental health treatment from Dr. Calhoun at Metropolitan Human Services. (Tr. 30). He testified that he talks to Dr. Calhoun once a month when he picks up his medicine and that he had an appointment to see Dr. Calhoun two days after the hearing. He said he is also treated at Daughters of Charity, but had not been there in a few months because his health care provider was sick the day of his last ...


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