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Norwood v. Berryhill

United States District Court, E.D. Louisiana

May 23, 2018

JARED HEATH NORWOOD
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY

         SECTION “G” (2)

          ORDER

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE

         FINDINGS AND RECOMMENDATION

         Plaintiff, Jared Heath Norwood, 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”) under Title II of the Act and 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

         Norwood filed applications for DIB and SSI on May 23, 2014, alleging disability since November 20, 2013, due to severe back problems. (Tr. 15, 76). After his claim was denied at the agency level, he requested a hearing before an Administrative Law Judge (“ALJ”), which was held on February 2, 2016 (Tr. 28-52). The ALJ issued a decision denying the application on May 3, 2016 (Tr. 12-14). On May 17, 2016, Norwood requested review of the ALJ's decision. (Tr. 140). After review, the Appeals Council upheld the ALJ's decision on May 11, 2017, and the ALJ's decision became the Commissioner's final decision for purposes of this court's review. (Tr. 1-4).

         Plaintiff filed a timely memorandum in support of his appeal, and defendant filed a timely reply memorandum. Record Doc. Nos. 16, 19.

         II. STATEMENT OF ISSUES ON APPEAL

         Plaintiff contends that the Commissioner made the following errors:

         A. Substantial evidence did not support the ALJ's residual functional capacity finding.

         B. The ALJ did not follow proper legal standards in determining how much weight to accord the opinions, diagnoses and medical evidence of plaintiff's treating physician as compared to the opinions of the reviewing physician.

         III. ALJ'S FINDINGS RELEVANT TO ISSUES ON APPEAL

1. Norwood meets the insured status requirements of the Social Security Act through December 31, 2017.
2. Plaintiff has not engaged in substantial gainful activity since November 20, 2013, the alleged onset date.
3. He has severe impairments consisting of obesity and degenerative disc disease of the cervical and lumbar spines.
4. Norwood 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.
5. Plaintiff has the residual functional capacity to perform the full range of sedentary work.
6. Norwood cannot perform his past relevant work as a shipfitter or welder.
7. Considering plaintiff's age, education, work experience and residual functional capacity, jobs exist in significant numbers that he can perform, including polisher and order clerk.
8. His subjective allegations were not found to be fully consistent with the medical evidence of record.[1]
9. Norwood has not been under a disability from November 20, 2013, through April 28, 2016, the date of the ALJ's decision.

(Tr. 17-23).

         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 Ark. v. Okla., 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 DIB and SSI[2], 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 (2016). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity.[3] 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 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.

         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

         Norwood testified at the hearing that he was 43 years old, has a twelfth grade education and worked as a fitter and welder at shipyards for 24 years. (Tr. 31, 34, 40). He said that he has not worked since he was in a car accident on November 20, 2013. (Tr. 33). Plaintiff said that he lives with his fiancée and her 22-year-old son.[4] (Tr. 32) He testified that his fiancée is disabled and receives workers' compensation, and that her son does not work. Id. Plaintiff stated that he no longer has a driver's license and that his fiancée's son drives him. (Tr. 33). He testified that no one will hire him because he takes painkillers, and he does not believe that he could work even if hired because he is always in pain. Id.

         When asked where he has pain, plaintiff responded, “Lower back and it shoots down to my leg, right arm.” (Tr. 34). Norwood stated that he does not do any exercises or physical therapy for his back or arm, but that he does walk when he can, and he will wake up and walk around when he gets muscle spasms, cramps or when his leg stiffens. Id. Later in the hearing, plaintiff also stated that his legs and neck hurt. (Tr. 39). He testified that he can walk for an hour to an hour and a half and can lift up to 60 pounds comfortably. (Tr. 34). As a shipfitter and welder, Norwood stated, he would lift about 75 pounds every other day in addition to his cutting torch and all of his welding tools. Id. Plaintiff testified that because he cannot read very well, a foreman would read blueprints for him. (Tr. 35).

         Norwood stated that he does not smoke, but that he takes prescription narcotic pain medicine to help him sleep, as prescribed by his primary care doctor, Jay Vega, M.D. Id. He said that side effects from the painkillers include sleepiness and constipation. (Tr. 38). Plaintiff testified that, aside from pain, he also has depression that prevents him from working and paying bills. (Tr. 36). When asked to describe his typical day, plaintiff responded, “If I could get up and move, I try to help [my fiancée]; clean the house if I can; feed the dogs; whatever. My [fiancée's] son does all the other stuff, all my heavy lifting and everything.” Id. He added that his fiancée's son also does yard work and unloads groceries. Id. Plaintiff stated that he occupies his time by playing with his dogs, walking outside and spending time with his fiancée. Id. He testified, however, that the majority of his and his ...


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