United States District Court, E.D. Louisiana
FINDINGS AND RECOMMENDATION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
Brian Guidroz,  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 disability insurance benefits
(“DIB”) and supplemental security income benefits
(“SSI”) under Titles II and XVI of the Act. 42
U.S.C. §§ 423, 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 his applications for DIB and SSI on January 19, 2014,
alleging disability since September 1, 2009, due to
rheumatoid arthritis. (Tr. 60, 71, 141-50, 167, 172). After
his claim was denied at the agency level, he requested a
hearing before an Administrative Law Judge (ALJ), which was
held on January 25, 2016. (Tr. 39-57). The ALJ issued a
decision denying the application on May 4, 2016. (Tr. 25-33).
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. 1-4).
filed a motion for summary judgment. Record Doc. No. 17.
Defendant filed a timely cross-motion for summary judgment,
Record Doc. No. 19, instead of an opposition memorandum, as
ordered. Record Doc. No. 18. The court treats plaintiff's
summary judgment motion as a memorandum of facts and law
regarding his instant appeal from the Commissioner's
final decision and treats defendant's cross-motion for
summary judgment as a reply memorandum of facts and law.
STATEMENT OF ISSUES ON APPEAL
contends that the Commissioner made the following errors:
A. The ALJ erred in finding that Guidroz's impairments of
degenerative disc disease, pes planus deformity of both feet,
and vision impairment (damage of optic nerve, glaucoma,
hypertensive retinopathy) are not severe.
B. The ALJ failed to give proper weight to the opinions of
plaintiff's treating physicians.
ALJ'S FINDINGS RELEVANT TO ISSUES ON APPEAL
1. Guidroz meets the insured status requirements of the Act
through March 31, 2013.
2. He has not engaged in substantial gainful activity since
his alleged onset date of September 1, 2009.
3. He has a severe impairment consisting of rheumatoid
4. Plaintiff has the residual functional capacity to perform
light work, except that he is restricted to occasional
postural activities, handling and fingering; and must avoid
concentrated exposure to work hazards such as heights and
5. His medically determinable impairments could reasonably be
expected to cause some of the alleged symptoms, but his
statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely consistent with
the medical and other evidence in the record.
6. Guidroz has no past relevant work.
7. Considering his age, education, work experience and
residual functional capacity, jobs exist in significant
numbers that plaintiff can perform, such as security guard,
usher and information clerk.
8. Plaintiff has not been under a disability since September
1, 2009 through the date of the ALJ's decision.
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 or DIB,
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 (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 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
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 he was 49 years old and had an
eighth grade education. He said he had last worked in 2007
for about one day, but last had a full-time job in 2000, when
he was hit by a school bus while working. He stated that he
received a worker's compensation settlement in 2004. (Tr.
41). He testified that he was awarded disability benefits by
the Commissioner for four or five years, but that his
benefits were terminated after he was reevaluated in 2007 or
2009. (Tr. 42). He said he had no other jobs in the past
stated that he lives with his 67-year-old mother, who is
employed. He said he does nothing during the day because of
his rheumatoid arthritis. (Tr. 43-44). Guidroz testified that
he can walk one-half to one mile before he needs to take a
break. He said he can only stand for ten minutes and prefers
to sit, but that standing up from sitting causes pain. (Tr.
44). He stated that he can sit for only five to ten minutes
before he must stand up.
said he is treated for rheumatoid arthritis by Dr. Luis
Espinoza, a rheumatologist. He stated that he was diagnosed
with “some femur (PHONETIC) on my lungs caused by the
medication I take, ” which makes him short of breath.
(Tr. 45). He said he started seeing another doctor, who
changed his medication for this condition. (Tr. 45-46).
testified that his rheumatoid arthritis affects him daily
from his toes to his neck and that he cannot do much. He said
the arthritis “irritates” his hands and feet most
of the time so that his fingers lock up and his feet fail
when he walks. He stated that he cannot lift anything and
that it hurts to stand, walk, bend or do anything. He said he
is in pain for 24 hours every day. (Tr. 46).
testified that he takes pain medication, but it does not
help. (Tr. 46-47). He stated that his pain had worsened to
the point that he cannot walk or lift his hand. He seemed to
say he had improved with medication, but then stated that his
condition never goes away and “pretty much all that
still goes on . . . with the medication.” (Tr. 47).
stated that his fingers might lock up if he works with them
for one-half to one hour, so he tries not to use his fingers
much. He said he has no side effects from his medication
other than “femur” in his lungs. He stated that
his memory is not good anymore and that he can only
concentrate on trying to loosen and work his body.
testified that the worst part of the day is when he gets up
in the morning and has “to try to land on my feet. But
I, if I do land on my feet, if like I said, walk and help me
and it hurt[s] me. . . . [S]o . . . it's a no-win
situation . . ., but if I could walk . . ., it pretty much
loosen up, or I better move a little better . . . .”
(Tr. 48). He continued: “[A]rthritis . . . is just
tricky, . . . I don't know what I'm better move in
the morning . . . . I might not better raise my hand as high
as my head, . . . or . . . either I can raise my hand and I
can't move my feet, . . . that's how it really
affect[s] my body . ...