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Termine v. Berryhill

United States District Court, E.D. Louisiana

April 16, 2018

MONICA TERMINE
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY

         SECTION “N” (2)

          FINDINGS AND RECOMMENDATION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Monica Termine, 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. § 1382c. 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

         Termine filed her application on August 27, 2014, alleging disability since July 26, 2007, due to two herniated discs, a titanium plate in her neck, three cervical disc surgeries, back problems, carpal tunnel syndrome, ulcer disease and depression. (Tr. 151, 174). After her claim was denied at the agency level, she requested a hearing before an Administrative Law Judge (ALJ), which was held on August 11, 2015. (Tr. 32-57). The ALJ issued a decision denying the application on September 10, 2015. (Tr. 17-26). After the Appeals Council denied review on April 20, 2017, the ALJ's decision became the Commissioner's final decision for purposes of this court's review. (Tr. 1-5).

         Plaintiff filed a timely memorandum in support of her appeal. Record Doc. No. 22. Defendant filed a timely reply memorandum. Record Doc. No. 23.

         II. STATEMENT OF ISSUES ON APPEAL

         Plaintiff contends that the Commissioner made the following errors:

A. The ALJ's findings that Termine has the residual functional capacity to make a successful adjustment to work that exists in significant numbers in the national economy are not supported by substantial evidence.
B. The ALJ did not follow proper legal standards in determining how much weight to accord the opinions, diagnoses and medical evidence of treating physicians as compared to the opinions of state-appointed examiners.
C. The ALJ failed properly to consider evidence indicating that plaintiff did not have the residual functional capacity to “sustain” any significant gainful employment.

         III. ALJ'S FINDINGS RELEVANT TO ISSUES ON APPEAL

1. Plaintiff has not engaged in substantial gainful activity since August 21, [1]2014, the date of her application for SSI.
2. She has severe impairments consisting of status post anterior cervical discectomy, polysubstance abuse and carpal tunnel release.
3. Termine 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.
4. Plaintiff has the residual functional capacity to perform light work, including frequent handling and fingering, except that she may occasionally climb ramps and stairs; occasionally stoop, bend and crouch; never crawl or reach overhead; never climb ropes, ladders or scaffolds; and is limited to simple, routine, repetitive tasks.
5. Her medically determinable impairments could reasonably be expected to cause some of the alleged symptoms. However, her statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible.
6. Termine can perform her past relevant work as a waitress.
7. Alternatively, considering plaintiff's age, education, work experience and residual functional capacity, jobs exist in significant numbers that she can perform, such as customer service representative, general office clerk and information clerk.
8. Termine has not been under a disability since August 21, 2014, the date of her application.

(Tr. 19-25).

         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 Fed.Appx. 773, 776 (5th Cir. 2012) (citing Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005)); Stringer v. Astrue, 465 Fed.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 Fed.Appx. at 776; Stringer, 465 Fed.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, 544 Fed.Appx. 358, 360 (5th Cir. 2013) (citing Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000)); Stringer, 465 Fed.Appx. at 364. The Commissioner, rather than the courts, must resolve conflicts in the evidence. McCaskill v. Dep't of Health & Human Servs., 640 Fed.Appx. 331, 332-33 (5th Cir. 2016) (citing Perez, 415 F.3d at 461); Luckey v. Astrue, 458 Fed.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 of whether 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 Fed.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 Fed.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 she 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 (2015). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity.[2] Id. §§ 404.1520, 416.920; Alexander v. Astrue, 412 Fed.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 she 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 Fed.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 Fed.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

         Termine testified at the hearing that she was 47 years old, had a tenth grade education and last worked in 2007 as a waitress at Harrah's. (Tr. 35-36). She said she had undergone three surgeries. She stated that she had previously filed an application for benefits after she stopped working, which was denied, and again after her second surgery in 2008, which she failed to pursue. She testified that she decided to file her current application after her third surgery in 2013 because she was not getting any better and could not go back to work. (Tr. 38).

         Plaintiff said she lives with her boyfriend and her 24-year-old son, both of whom are employed. She testified that, on a typical day if she had a good night's sleep, she gets up and does some activities around the house slowly. She stated that she can do housework if “it's all broken up.” She said she can fold a load of clothes and towels, but can only fold about eight towels because her neck gets tired from lifting her arms to hold up the towels. She stated that she then rests or washes the dishes.

         Termine testified that she drives herself to the doctor or the grocery store, which is about one and one-half miles from her house. She said she cannot turn her head from side to side, but does not have to turn her head much because she is familiar with the routes. (Tr. 39).

         Plaintiff stated that her daughter and eight-year old grandson live with her during the summer. She said she watches her grandson and that he helps her a lot. She said she used to take vacations, but has not traveled in a very long time. She denied having taken a recent trip to Georgia, which the ALJ had seen mentioned in her medical records. She testified that she was going to take that trip, but did not do it. (Tr. 40-41).

         Termine said she is not using illegal drugs. When the ALJ noted that plaintiff had tested positive for cocaine once, Termine testified that her grandchild had passed away. She clarified that the cocaine use happened before her grandchild's death, on a night when she lost another family member or some other event happened, and she testified that she had not used any illegal drugs since then. She stated that her doctor at that time wanted her to stop taking narcotics and that she did so for about three months, while still taking gabapentin[3] and other non-narcotic medications. She said she then started seeing Dr. Meda Colvin, who put her back on narcotics, after plaintiff saw a psychotherapist who confirmed that she was “fine.” (Tr. 41-42). Termine stated that she still sees Dr. Colvin and takes regular drug tests for her.

         Upon questioning by her attorney, plaintiff testified that she stays home, except to go to the doctor and the store, and she goes nowhere for chores or for fun. She stated that the last event she attended was a benefit for her grandson after he died. She said she does not like to go to the mall or other crowded places because she is afraid ...


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