United States District Court, E.D. Louisiana
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE
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).
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).
filed a timely memorandum in support of his appeal, and
defendant filed a timely reply memorandum. Record Doc. Nos.
STATEMENT OF ISSUES ON APPEAL
contends that the Commissioner made the following errors:
Substantial evidence did not support the ALJ's residual
functional capacity finding.
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.
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.
9. Norwood has not been under a disability from November 20,
2013, through April 28, 2016, the date of the ALJ's
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 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.
considered disabled and eligible for DIB and
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. 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 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. (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.
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).
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