United States District Court, W.D. Louisiana, Shreveport Division
MAURICE HICKS, JR., Judge.
REPORT AND RECOMMENDATION
L. Hayes, United States Magistrate Judge.
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.
& Procedural History
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).
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.
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).
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.
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
(2) An individual who does not have a “severe
impairment” of the requisite duration will not be found
(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
(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).
Evaluation Process in this Case
Steps One, Two, and Three
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). 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).
Residual Functional Capacity Assessment
next determined that Bissell retained the residual functional
capacity (“RFC”) to perform sedentary work,
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).
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).
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.
Frequency and Length of Bathroom Breaks
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