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Tillman v. Colvin

United States District Court, M.D. Louisiana

February 15, 2019

CHARLES NELSON TILLMAN, III
v.
CAROLYN W. COLVIN COMMISSIONER OF SOCIAL SECURITY

          NOTICE

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.

         Please 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.

         Under 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.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         REPORT AND RECOMMENDATION

         Charles 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.

         I. PROCEDURAL HISTORY

         Plaintiff 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.

         II. STANDARD OF REVIEW

         This 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).

         If the 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 Cir. 1987).

         III. ALJ'S DETERMINATION

         In 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).

         If the 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.

         Here, 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, 2012.

         IV. DISCUSSION

         Plaintiff 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).

         A. Step Two - ...


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