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Bissell v. Berryhill

United States District Court, W.D. Louisiana, Shreveport Division

February 1, 2019

KAREN SUZANNE BISSELL
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION

          S. MAURICE HICKS, JR., Judge.

          REPORT AND RECOMMENDATION

          Karen L. Hayes, United States Magistrate Judge.

         Before the court is plaintiff's petition for review of the Commissioner's denial of social security disability benefits. The district court referred the matter to the undersigned United States Magistrate Judge for proposed findings of fact and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). For the reasons assigned below, it is recommended that the decision of the Commissioner be AFFIRMED, and this matter DISMISSED with prejudice.

         Background & Procedural History

         Karen Bissell filed the instant application for Title II Disability Insurance Benefits on April 15, 2015. (Tr. 20, 132-133). She alleged disability as of December 16, 2013, because of arthritis, high blood pressure, high cholesterol, and diverticulitis. (Tr. 147). Her claims were denied at the initial stage of the administrative process. (Tr. 55-65, 70-73). Thereafter, Bissell requested and received a May 12, 2016, hearing before an Administrative Law Judge (“ALJ”). (Tr. 32-54). However, in an August 3, 2016, written decision, the ALJ determined that Bissell was not disabled under the Act, finding at step four of the sequential evaluation process that she was able to return to her past relevant work as a data entry clerk and office manager. (Tr. 17-28). Bissell appealed the adverse decision to the Appeals Council. On August 14, 2017, however, the Appeals Council denied Bissell's request for review; thus the ALJ's decision became the final decision of the Commissioner. (Tr. 1-3).

         On October 10, 2017, Bissell sought review before this court. She alleges several assignments of error primarily associated with the ALJ's step four finding that the claimant could return to her past relevant work. Briefing is complete; the matter is before the court.

         Standard of Review

         This court's standard of review is (1) whether substantial evidence of record supports the ALJ's determination, and (2) whether the decision comports with relevant legal standards. Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Where the Commissioner's decision is supported by substantial evidence, the findings therein are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389, 390 (1971). The Commissioner's decision is not supported by substantial evidence when the decision is reached by applying improper legal standards. Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. at 401. Substantial evidence lies somewhere between a scintilla and a preponderance. Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991). A finding of no substantial evidence is proper when no credible medical findings or evidence support the ALJ's determination. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). The reviewing court may not reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (citation omitted).

         Determination of Disability

         Pursuant to the Social Security Act (“SSA”), individuals who contribute to the program throughout their lives are entitled to payment of insurance benefits if they suffer from a physical or mental disability. See 42 U.S.C. § 423(a)(1)(D). The SSA defines a disability as the “inability 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 12 months . . . .” 42 U.S.C. § 423(d)(1)(A). Based on a claimant's age, education, and work experience, the SSA utilizes a broad definition of substantial gainful employment that is not restricted by a claimant's previous form of work or the availability of other acceptable forms of work. See 42 U.S.C. § 423(d)(2)(A). Furthermore, a disability may be based on the combined effect of multiple impairments which, if considered individually, would not be of the requisite severity under the SSA. See 20 C.F.R. § 404.1520(a)(4)(ii).

         The Commissioner of the Social Security Administration has established a five-step sequential evaluation process that the agency uses to determine whether a claimant is disabled under the SSA. See 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows,

(1) An individual who is performing substantial gainful activity will not be found disabled regardless of medical findings.
(2) An individual who does not have a “severe impairment” of the requisite duration will not be found disabled.
(3) An individual whose impairment(s) meets or equals a listed impairment in [20 C.F.R. pt. 404, subpt. P, app. 1] will be considered disabled without the consideration of vocational factors.
(4) If an individual's residual functional capacity is such that he or she can still perform past relevant work, then a finding of “not disabled” will be made.
(5) If an individual is unable to perform past relevant work, then other factors including age, education, past work experience, and residual functional capacity must be considered to determine whether the individual can make an adjustment to other work in the economy.

See Boyd v. Apfel, 239 F.3d 698, 704 -705 (5th Cir. 2001); 20 C.F.R. § 404.1520. The claimant bears the burden of proving a disability under the first four steps of the analysis; under the fifth step, however, the Commissioner must show that the claimant is capable of performing work in the national economy and is therefore not disabled. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). When a finding of “disabled” or “not disabled” may be made at any step, the process is terminated. Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990). If at any point during the five-step review the claimant is found to be disabled or not disabled, that finding is conclusive and terminates the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).

         Sequential Evaluation Process in this Case

         I. Steps One, Two, and Three

         The ALJ determined at step one of the sequential evaluation process that Bissell had not engaged in substantial gainful activity during the relevant period. (Tr. 22). At step two, she found that Bissell suffers severe impairments of obesity, osteoarthritis in the knees and hips, and history of diverticulitis. (Tr. 22-23).[1] She concluded, however, that the impairments were not severe enough to meet or medically equal any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4, at step three of the process. (Tr. 23).

         II. Residual Functional Capacity Assessment

         The ALJ next determined that Bissell retained the residual functional capacity (“RFC”) to perform sedentary work, [2] except that she would need to change position on an as needed basis for comfort from sitting to standing briefly, or if standing, to sit down; and may need to take four or more brief bathroom breaks per day. (Tr. 23-27).

         III. Step Four

         At step four of the sequential evaluation process, the ALJ employed a vocational expert (“VE”) to find that Bissell was able to return to her past relevant work as a data entry clerk and office manager, both as she actually performed those jobs, and as those jobs are generally performed in the national economy. (Tr. 27).[3]

         Analysis

         In her appeal to this court, plaintiff attacks the legal sufficiency of the ALJ's step four finding via multiple, converging angles. The court will address her arguments, out of turn.

         a) Frequency and Length of Bathroom Breaks

         Plaintiff argues that the ALJ violated the maxim that the hypothetical posed to the VE must reasonably incorporate the disabilities and limitations recognized by the ALJ. Bowling v. Shalala, 36 F.3d 431 (5th Cir. 1994). Specifically, she seems to argue that although the ALJ asked the VE whether an employer would permit the hypothetical claimant to take “four or more bathroom breaks per day, ” the ALJ then failed to follow-up with the VE to determine precisely how many bathroom breaks would be permitted. ...


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