United States District Court, E.D. Louisiana
LILLIAN C. RIERA
NANCY A. BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION
REPORT AND RECOMMENDATION
MICHAEL B. NORTH, UNITED STATES MAGISTRATE JUDGE
to 28 U.S.C. §636(b) and Local Rule 73.2(B), this matter
comes before the Court on the parties' cross-motions for
summary judgment following a decision of the Commissioner of
the Social Security Administration denying Plaintiff's
application for Disability Insurance Benefits
(“DIB”) and her concomitant request for Medicare
Part A coverage under the Social Security Act. (Rec. docs.
C. Riera, Plaintiff herein, filed the subject application for
DIB on October 23, 2014, alleging disability as of November
2, 2010. (Tr. pp. 117-118). In a “Disability
Report-Adult” form that appears in the administrative
record below, the conditions limiting Plaintiff's ability
to work were identified as kidney cancer causing the loss of
one such organ, radiation damage to the spine, chronic pain
issues due to radiation damage, a fusion to the back to
stabilize the damage, and osteoporosis. (Tr. p. 148).
Plaintiff's application for DIB was denied at the initial
level of the Commissioner's administrative review process
on May 13, 2015. (Tr. pp. 83-86). Pursuant to Plaintiff's
request, a hearing de novo before an Administrative
Law Judge (“ALJ”) went forward on March 11, 2016
at which Plaintiff, who was unrepresented by counsel, and a
Vocational Expert (“VE”) appeared and testified.
(Tr. pp. 115-116, 114, 49-73). On April 20, 2016, the ALJ
issued a written decision in which he concluded that
Plaintiff was not disabled and was thus not entitled to
Medicare coverage under the Social Security Act. (Tr. pp.
11-27). The Appeals Council (“AC”) subsequently
denied Plaintiff's request for review of the ALJ's
decision on May 4, 2017, thus making the ALJ's decision
the final decision of the Commissioner. (Tr. pp. 4-8). It is
from that unfavorable decision that the Plaintiff seeks
judicial review pursuant to 42 U.S.C. §405(g).
pro se cross-motion for summary judgment, Plaintiff
broadly challenges the sufficiency of the evidence supporting
the Commissioner's decision, attaching to her complaint a
number of medical records that pre-date and post-date the
ALJ's decision. (Rec. doc. 1, pp. 27-80). Relevant to the
resolution of Plaintiff's challenge are the following
findings that were made by the ALJ:
1. The claimant does not meet the insured status requirements
for purposes of entitlement to disability insurance cash
benefits, but she does meet the special insured requirements
for Medicare purposes through June 30, 2017, based on her
Medicare qualified government employment.
2. The claimant has not engaged in substantial gainful
activity since November 2, 2010, the alleged onset date (20
CFR 404.1571 et seq.).
3. The claimant has the following severe impairments:
degenerative disc disease, gastroesophageal reflux disease
(GERD), and history of nephrectomy. The claimant has the
following non-severe impairment: hypothyroidism (20 CFR
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(b) except frequent climbing of ramps and stairs;
occasional climbing of ladders, ropes, and scaffolds; and
occasional balancing, stooping, kneeling, crouching, and
6. The claimant is unable to perform any past relevant work
(20 CFR 404.1565).
7. The claimant was born on August 8, 1963 and was 47 years
old, which is defined as a younger individual age 18-49, on
the alleged disability onset date. The claimant subsequently
changed age category to closely approaching advanced age (20
8. The claimant has at least a high school education and is
able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the
determination of disability because using the
Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled, ” whether or
not the claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that the claimant can perform (20 CFR 404.1569 and
11. The claimant has not been under a disability, as defined
in the Social Security Act, from November 2, 2010, through
the date of this decision (20 CFR 404.1520(g)).
(Tr. pp. 16, 17, 18, 22, 23).
review of the Commissioner's decision to deny DIB is
limited under 42 U.S.C. §405(g) to two inquiries: (1)
whether substantial evidence of record supports the
Commissioner's decision and (2) whether the decision
comports with relevant legal standards. Estate of Morris
v. Shalala, 207 F.3d 744, 745 (5th Cir.
2000); Anthony v. Sullivan, 954 F.2d 289, 292
(5th Cir. 1992); Villa v. Sullivan, 895
F.2d 1019, 1021 (5th Cir. 1990); Fraga
v. Bowen, 810 F.2d 1296, 1302 (5th Cir. 1987). If
the Commissioner's findings are supported by substantial
evidence, they are conclusive and must be affirmed. 42 U.S.C.
§405(g); Richardson v. Perales, 402 U.S. 389,
91 S.Ct. 1420 (1971). A finding of no substantial evidence is
appropriate only if no credible evidentiary choices or
medical findings exist to support the Commissioner's
decision. Johnson v. Bowen, 864 F.2d 340, 343-44
(5th Cir. 1988). Substantial evidence is more than a
scintilla, less than a preponderance, and is such relevant as
a reasonable mind might accept as adequate to support a
conclusion. Jones v. Heckler, 702 F.2d 616, 620 (5th
Cir. 1983). The Court may not reweigh the evidence or try the
issues de novo, nor may it substitute its judgment
for that of the Commissioner. Cook v. Heckler, 750
F.2d 391, 392 (5th Cir. 1985). Conflicts in the evidence are
for the Commissioner to resolve, not the courts. Patton
v. Schweiker, 697 F.2d 590, 592 (5th Cir.
claimant seeking DIB bears the burden of proving that she is
disabled within the meaning of the Social Security Act.
Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988).
Disability is defined as the “inability to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which … has
lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. §423(d)(1)(A).
Once the claimant carries her initial burden, the
Commissioner then bears the burden of establishing that the
claimant is capable of performing substantial gainful
activity and is, therefore, not ...