United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
take note that the attached Magistrate Judge's Report and
Recommendation has been filed with the Clerk of the U.S.
District Court for the Middle District of Louisiana.
28 U.S.C. § 636(b)(1), you have 14 days
from receipt of this Notice to file written objections to the
proposed findings of fact and conclusions of law in the
Magistrate Judge's Report. A failure to object will
constitute a waiver of your right to attack the factual
findings on appeal.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
Nelson Tillman, III (Plaintiff) seeks judicial review of a
final decision of the Commissioner of the Social Security
Administration (“Commissioner”) pursuant to 42
U.S.C. § 405(g) denying Plaintiff's application for
Disability Insurance Benefits under the Social Security Act.
(R. Doc. 1). Having found all of the procedural prerequisites
met (Tr. 1-5), the Court has properly reviewed
Plaintiff's appeal. See 42 U.S.C. § 405(g);
20 C.F.R. § 404.981 (“The Appeals Council's
decision, or the decision of the administrative law judge if
the request for review is denied, is binding unless
you… file an action in Federal district
court…”). For the reasons given below, the Court
RECOMMENDS that the decision of the
Commissioner be AFFIRMED and Plaintiff's
appeal be DISMISSED with prejudice.
filed his application for disability insurance benefits (Tr.
275-281) on October 15, 2012, alleging that he became
disabled on July 17, 2009 because of a disabling condition,
namely degenerative back disease, bi-polar, mood disorder,
and sleep disorder. (Tr. 275-81, 323). Plaintiff's
application was initially denied by an Administrative Law
Judge (“ALJ”), who first held an administrative
hearing (Tr. 43-74) before issuing an unfavorable decision on
June 23, 2014. (Tr. 107-17). Plaintiff's first request
for review of the ALJ's decision (Tr. 215) was granted by
the Appeals Council on November 15, 2015. (Tr. 150-54). The
ALJ issued a subsequent unfavorable decision on June 2, 2016.
(Tr. 7-34). Plaintiff filed a second request for review (Tr.
274) with the Appeals Council, which was denied on August 6,
2017. (Tr. 1-6). The ALJ's decision rested as the
Commissioner's final decision when the Appeals Council
denied Plaintiff's second request for review.
See 20 C.F.R. § 404.981.
STANDARD OF REVIEW
Court's review of the Commissioner's decision is
limited to an inquiry into whether there is substantial
evidence to support the findings of the Commissioner and
whether the correct legal standards were applied. 42 U.S.C.
§ 405(g); Richardson v. Perales, 402 U.S. 389,
401 (1971); Falco v. Shalala, 27 F.3d 160, 162 (5th
Cir. 1994); Villa v. Sullivan, 895 F.2d 1019, 1021
(5th Cir. 1990). Substantial evidence has been defined as
“‘more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'”
Richardson, 402 U.S. at 401 (quoting
Consolidated Edison Co. of N.Y. v. N.L.R.B., 305
U.S. 197, 229 (1938) (defining “substantial
evidence” in the context of the National Labor
Relations Act, 29 U.S.C. § 160(e)). The Fifth Circuit
has further held that substantial evidence “must do
more than create a suspicion of the existence of the fact to
be established, but no substantial evidence will be found
only where there is a conspicuous absence of credible choices
or no contrary medical evidence.” Hames v.
Heckler, 707 F.2d 162, 164 (5th Cir. 1983) (quotations
omitted). Conflicts in the evidence are for the Commissioner
“and not the courts to resolve.” Selders v.
Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The Court
may not reweigh the evidence, try the case de novo,
or substitute its own judgment for that of the Commissioner
even if it finds that the evidence preponderates against the
Commissioner's decision. See, e.g., Bowling
v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994)
(“This is so because substantial evidence is less than
a preponderance but more than a scintilla.”);
Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988)
(“In applying the substantial evidence standard, we
must carefully scrutinize the record to determine if, in
fact, such evidence is present; at the same time, however, we
may neither reweigh the evidence in the record nor substitute
our judgment for the Secretary's.”); Harrell v.
Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (same).
Commissioner's decision is supported by substantial
evidence, then it is conclusive and must be upheld.
Estate of Morris v. Shalala, 207 F.3d 744, 745 (5th
Cir. 2000). If, on the other hand, the Commissioner fails to
apply the correct legal standards, or fails to provide a
reviewing court with a sufficient basis to determine that the
correct legal principles were followed, it is grounds for
reversal. Bradley v. Bowen, 809 F.2d 1054, 1057 (5th
determining disability, the Commissioner (through an ALJ)
works through a five-step sequential evaluation process.
See 20 C.F.R. § 404.1520(a)(4). The burden
rests upon the claimant throughout the first four steps of
this five-step process to prove disability. If the claimant
is successful in sustaining his or her burden at each of the
first four steps, the burden shifts to the Commissioner at
step five. See Muse v. Sullivan, 925 F.2d 785, 789
(5th Cir. 1991) (explaining the five-step process). First,
the claimant must prove he or she is not currently engaged in
substantial gainful activity. 20 C.F.R. § 404.1520(b).
Second, the claimant must prove his or her impairment is
“severe” in that it “significantly limits
your physical or mental ability to do basic work
activities…” 20 C.F.R. § 404.1520(c). At
step three, the ALJ must conclude the claimant is disabled if
he or she proves that his or her impairments meet or are
medically equivalent to one of the impairments contained in
the Listing of Impairments. See 20 C.F.R. §
404.1520(d) (step three of sequential process); 20 C.F.R. pt.
404, subpt. P, app'x 1 (Listing of Impairments). Fourth,
the claimant bears the burden of proving he or she is
incapable of meeting the physical and mental demands of his
or her past relevant work. 20 C.F.R. § 404.1520(f).
claimant is successful at all four of the preceding steps
then the burden shifts to the Commissioner to prove,
considering the claimant's residual functional capacity,
age, education and past work experience, that he or she is
capable of performing other work. 20 C.F.R §
404.1520(g)(1). If the Commissioner proves other work exists
which the claimant can perform, the claimant is given the
chance to prove that he or she cannot, in fact, perform that
work. Muse, 925 F.2d at 789.
the ALJ made the following determinations:
1. Plaintiff had not engaged in substantial gainful activity
since October 5, 2012.
2. Plaintiff had the following severe impairments: possible
traumatic brain injury, borderline intellectual functioning,
bipolar disorder, and borderline personality disorder.
3. Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one
of the Listings.
4. Plaintiff had the residual functional capacity to perform
medium work, except that he may not climb ladders, ropes, or
scaffolds; he may perform work of a simple, routine nature
with no public interaction and occasional interaction with
coworkers and supervisors; and he may perform work requiring
no decision-making, few changes in routine, and no
production-type quotas that could cause stress.
5. Plaintiff had no past relevant work.
6. Plaintiff was 42 years old, which is defined as a younger
individual age 18-49, on the date his application was filed.
7. Plaintiff had a limited education and is able to
communicate in English.
8. Transferability of job skills was not an issue because
Plaintiff did not have past relevant work.
9. Considering Plaintiff's age, education, work
experience, and residual functional capacity, there were jobs
that exist in significant numbers in the national economy
that Plaintiff can perform.
10. Plaintiff was not under a disability since October 5,
advances essentially four arguments in support of his request
to reverse the ALJ's decision, which will be addressed
within the framework of the five-step analysis. First,
Plaintiff suggests the ALJ committed error when she found
that Plaintiff did not meet or medically equal Listing 12.05.
(R. Doc. 14 at 1, 3-4). Second, Plaintiff argues the ALJ
improperly weighed the opinions of various psychological
examiners. (R. Doc. 14 at 1, 7-8). Third, Plaintiff suggests
the ALJ failed to account for Plaintiff's neurocognitive
limitations in her RFC assessment. (R. Doc. 14 at 6-7).
Lastly, Plaintiff argues that the ALJ's reliance on the
testimony of the vocational expert was misplaced. (R. Doc. 14
at 1, 3-4).
Step Two - ...