United States District Court, E.D. Louisiana
FINDINGS AND RECOMMENDATION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
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).
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).
filed a timely memorandum in support of her appeal. Record
Doc. No. 22. Defendant filed a timely reply memorandum.
Record Doc. No. 23.
STATEMENT OF ISSUES ON APPEAL
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.
ALJ'S FINDINGS RELEVANT TO ISSUES ON APPEAL
1. Plaintiff has not engaged in substantial gainful activity
since August 21, 2014, the date of her application for SSI.
2. She has severe impairments consisting of status post
anterior cervical discectomy, polysubstance abuse and carpal
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
8. Termine has not been under a disability since August 21,
2014, the date of her application.
Standards of Review
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.
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.
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. 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.
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.
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.
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.
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.
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).
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.
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 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.
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 ...