United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
WELLS ROBY UNITED STATES MAGISTRATE JUDGE
an action for judicial review of a final decision of the
Commissioner of the Social Security Administration
(“The Commissioner”) pursuant to Title 42 U.S.C.
§ 405(g). The Commissioner denied the request of
Plaintiff, Amanda R. Brigido, (“Brigido”), for
Disability Insurance Benefits (“DIB”) under Title
II of the Social Security Act, 42 U.S.C. § 423 and
protectively for Supplemental Security Income Benefits
(“SSI”) pursuant to Title XVI, 42 U.S.C. §
is a forty-two-year-old, 260-pound, 5 foot 4 inches tall
female who previously worked in housekeeping, as a packer,
and with liquid containers. R. Doc. 8-3, Tr.101. On April 29,
2014, Brigido filed for a period of disability under Title II
and SSI under Title XVI, alleging disability since March 5,
2013 for major depression disorder, agoraphobia, panic
disorder, OCD, migraines, high blood pressure, and arthritis.
R. Doc. 8, Tr. 19, 202, 206, 222 and 225.
filed a written request for a hearing on October 23, 2014. R.
Doc. 8-1, Tr. 119-121. Kerry Morgan, the Administrative Law
Judge (“ALJ”), held a hearing on August 9, 2016.
R. Doc. 8-4, Tr. 197. The ALJ denied Brigido's claim on
September 6, 2016, finding that she was not disabled under
the meaning of the Social Security Act (“SSA”).
R. Doc. 8-2, Tr. 19-28.
decision, the ALJ reviewed Brigido's claims pursuant to
the five-step analysis used to determine whether a
claimant is disabled. Id., T. 20. Using this
analysis, the ALJ found that Brigido met the insured status
requirements of the SSA through December 31, 2016, and that
she did not engage in substantial gainful activity since
January 1, 2014 (her alleged onset date). Id., Tr.
22. The ALJ further found that she suffered from the
following severe impairments: fibromyalgia, lumbar
degenerative disc disease with radiculopathy, thoracic
degenerative disc disease, chronic pain syndrome, obesity,
depression, major depressive disorder without psychosis,
post-traumatic stress disorder, and anxiety disorder with
obsessive compulsive disorder. Id.
also found that Brigido did not have an impairment, or
combination thereof, that medically equaled the impairments
listed in 20 C.F.R. Part. 404, Subpart P, Appendix 1, and
that would constitute a presumptive disability. Id.,
further found the Brigido has the residual functional
capacity to perform medium work as defined in the
regulations. Id., Tr. 23. However, the ALJ found
that she could frequently climb ramps/stairs; occasionally
bend, stoop, kneel, crouch and crawl; and never climb
ladders, ropes or scaffolds. Id. The ALJ also held
that Brigido could understand, remember and complete 1, 2, 3,
and 4-step simple, detailed instructions and tasks; maintain
attention, concentration, persistence, or pace in two-hour
segments of time (with customary breaks between segments);
tolerate occasional contact with the public; and infrequent
changes in job duties. Finding 5, Rec. Doc, 8-2, Tr. 26.
further held that Brigido is capable of performing past
relevant work as a hand packer and courier. Finding 6, Rec.
Doc. 8-2, Tr. 26. The work, according to the ALJ, does not
require the performance of work-related activities precluded
by the claimant's residual functional capacity.
Id. Finally, the ALJ found that the claimant has not
been under a disability from January 1, 2014 through the
decision date or September 6, 2016. Finding 7, Rec. Doc. 8-2,
filed a complaint contending that the ALJ's decision was
not based upon substantial evidence, because the ALJ: (1)
impermissibly picked or chose to evaluate the evidence; (2)
impermissibly relied only on her own medical opinion in
determining a residual functional capacity for Brigido; (3)
erred as a matter of law in deciding the case at Steps 4 and
5; (4) failed to support the residual functional a capacity
evaluation and vocational evidentiary conclusions with
substantial evidence; and (5) failed to properly conduct a
Step 3 Listing evaluation. R. Doc. 16.
Commissioner positions that substantial evidence supports the
ALJ's finding. R. Doc. 15. The Commissioner contends that
the ALJ properly evaluated Bridigo's physical
impairments, and properly developed the record. Id.
The Commissioner also contends that the ALJ's alternative
finding does not amount to legal error, because the ALJ
properly relied on the vocational expert's description of
Brigido's past relevant work and properly evaluated
Brigido's impairments at Step Three. Id.
Standard of Review
Title 42 U.S.C. § 405(g), the role of this Court on
judicial review is limited to determining whether: (1) the
final decision is supported by substantial evidence; and (2)
whether the Commissioner applied the proper legal standards
when evaluating the evidence. See Brown v. Apfel,
192 F.3d 492, 496 (5th Cir. 1999). The Court may not re-weigh
the evidence, try issues de novo, or substitute its
judgment for that of the Commissioner. Allen v.
Schweiker, 642 F.2d 799, 800 (5th Cir. 1981). If
supported by substantial evidence, the Commissioner's
findings are conclusive and must be affirmed. Houston v.
Sullivan, 895 F.2d 1012, 1016 (5th Cir. 1989). However,
an ALJ's failure to apply the correct legal test
constitutes a ground for reversal. Casias v. Secretary of
Health & Human Servs., 933 F.2d 799, 801 (10th Cir.
evidence is more than a scintilla and less than a
preponderance, and is considered relevant such that a
reasonable mind might accept it as adequate to support a
conclusion. Ripley v. Chater, 67 F.3d, 552, 555 (5th
Cir. 1995); citing Richardson v Perales, 402 U.S.
389, 401 (1971). It must do more than create a suspicion of
the existence of the fact to be established, but no
“substantial evidence” will be found where there
is only a “conspicuous absence of credible
choices” or “contrary medical evidence.”
See Payne v. Weinberger, 480 F.2d 1006, 1007 (5th
Cir. 1973); Hemphill v. Weinberger, 483 F.2d 1137,
1138 (5th Cir. 1973). Moreover, “a single piece of
evidence will not satisfy the substantiality test if the ALJ
ignores, or fails to resolve, a conflict created by
countervailing evidence. Evidence is not substantial if it is
overwhelmed by other evidence, particularly evidence offered
by treating physicians.” Franklin v. Soc. Sec.
Admin., No. 122681, 2013 WL 5739078, at *2 (E.D. La.
Oct. 22, 2013) (citing Kent v. Schweiker, 710 F.2d
110, 114 (3rd Cir. 1983)).
must give controlling weight to the opinion of a treating
physician if it is “well supported by medically
acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with . . . other substantial
evidence.” Newton v. Apfel, 209 F.3d 448, 456
(5th Cir. 2000) (citing 20 C.F.R.' 404.1527(c)(2)).
However, “[t]he ALJ is free to reject the opinion of
any physician when the evidence supports a contrary
conclusion.” Bradley v. Bowen, 809 F.2d 1054,
1057 (5th Cir. 1987). The ALJ must consider the following
relevant criteria: (1) the physician's length of
treatment of the claimant; (2) the physician's frequency
of examination; (3) the nature and extent of the treatment
relationship; (4) the support of the physician's opinion
afforded by the medical evidence of record; (5) the
consistency of the opinion with the record as a whole; and
(6) the specialization of the treating physician.
See 20 C.F.R' 404.1527. “Good cause for
abandoning the treating physician rule includes
>disregarding statements [by the treating physician] that
are brief and conclusory, not supported by medically
acceptable clinical laboratory diagnostic techniques, or
otherwise unsupported by evidence.” Leggett v.
Chater, 67 F.3d 558, 566 (5th Cir. 1995).
there is reliable medical evidence from a treating or
examining physician that controverts the claimant's
treating specialist, the ALJ may reject the opinion of the
treating physician only if the ALJ performs a detailed
analysis of the treating physician's views under 20 CFR
404.1527. See Newton, 209 F.3rd 448. Further,
regardless of the opinions and diagnoses of medical sources,
“the ALJ has sole responsibility for determining a
claimant's disability status.” Martinez v.
Chater, 64 F.3d 173, 176 (5th Cir. 1995).
the Court “weigh[s] four elements of proof when
determining whether there is substantial evidence of
disability: (1) objective medical facts; (2) [the] diagnosis
and opinions of treating and examining physicians; (3) the
claimant's subjective evidence of pain and disability;
and (4) [his] age, education, and work history.”
Hendricks v. Apfel, No. 99-1212, 2000 WL 174884, at
*3 (E.D. La. Feb. 14, 2000) (citing Martinez, 64
F.3d at 174).
is defined in the Social Security Act as the “inability
to engage in substantial gainful activity by reason of any
medically determinable physical or mental impairment which .
. . has lasted . . . for a constructive period of not less
than twelve months.” 42 U.S.C. 416(i)(1), 423(d)(1)(A).
Section 423(d)(3) of the Act further defines “physical
or mental impairment” as “an impairment that
results from anatomical, physiological or psychological