United States District Court, W.D. Louisiana, Monroe Division
A. DOUGHTY JUDGE
REPORT & 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
Marie Storm filed the instant applications for Title II
Disability Insurance Benefits and Title XVI Supplemental
Security Income payments on July 9, 2015. (Tr. 12,
168-182). She alleged disability as of January 1,
2015, because of lupus SLE, kidney disease/failure, reactive
airway disease, depression, anxiety, chronic joint pain,
chronic muscle pain, joint swelling, insomnia, and extreme
fatigue. (Tr. 204, 208). The state agency denied the claims
at the initial stage of the administrative process. (Tr.
65-92). Thereafter, Storm requested and received a December
15, 2016, hearing before an Administrative Law Judge
(“ALJ”). (Tr. 27-63). However, in a February 1,
2017, written decision, the ALJ determined that Storm was not
disabled under the Social Security Act, finding at step five
of the sequential evaluation process that she was able to
make an adjustment to work that exists in substantial numbers
in the national economy. (Tr. 9-22). Storm sought review of
the adverse decision before the Appeals Council. On December
19, 2017, however, the Appeals Council denied the request for
review; thus the ALJ's decision became the final decision
of the Commissioner. (Tr. 1-3).
February 15, 2018, Storm filed the instant complaint for
judicial review of the Commissioner's decision. She
asserts the following errors:
1) The Commissioner's decision applied an incorrect legal
standard by relying on determinations by the ALJ which gave
more weight to the opinions of non-examining DDS reviewing
sources than to those of the consultative examiners and of
the treating sources.
2) The Commissioner's findings are the product of
“cherry-picking” by the Administrative Law Judge
on issues of disability, ignoring portions of the record
which are consistent with Ms. Storm's testimony and
medically determinable impairments, thus fairly detracting
from the substantiality of evidence supporting the
Commissioner's findings, so that the Commissioner's
decision is not supported by substantial evidence.
3) The Commissioner's findings are also the product of
misstatement and mischaracterization by the ALJ of the
evidence so that the decision to deny benefits is not
supported by substantial evidence.
matter is fully briefed and ripe.
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,
(5th Cir. 1994).
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).
Steps One, Two, and Three
determined at step one of the sequential evaluation process
that the claimant had not engaged in substantial gainful
activity during the relevant period. (Tr.
14-15). At step two, she found that the claimant
suffers severe impairments of lupus with lupus nephritis,
fibromyalgia, and obesity. (Tr. 15-16). 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. 17).
Residual Functional Capacity
next determined that the claimant retained the residual
functional capacity (“RFC”) to perform the full
range of light work. (Tr. 17-21).
Steps Four and Five
four, the ALJ determined that the claimant had no past
relevant work. (Tr. 21). Accordingly, she proceeded to step
five. At this step, the ALJ determined that the claimant was
a younger individual, with at least a high school education,
and the ability to communicate in English. (Tr. 21).
Transferability of skills was not at issue because the
claimant had no past relevant work. Id.
then observed that, given the claimant's vocational
factors, and the ability to perform the full range of light
work, the Medical-Vocational Guidelines directed a finding of
not disabled. 20 C.F.R. § 404.1569; Rule 202.20, Table
2, Appendix 2, Subpart P, Regulations No. 4. (Tr. 21-22).
Chronology of Relevant Medical Evidence
19, 2013, Storm was seen by nurse practitioner, Erika
Spencer. (Tr. 321-323). Storm wanted her kidneys checked, and
medication refills. Id.
August 14, 2013, Storm was seen at University
Health-Shreveport by Seth Berney, M.D. (Tr. 325-327). She
reported no weight loss or gain. Id. She experienced
joint stiffness for two hours. Id. She had a
trichophyton on her right arm. Id. She was not
photosensitive to the sun. Id. She had achy muscle
pain, headaches, and occasional confusion. Id. Upon
examination, she had multiple tattoos, but no rashes.
Id. Berney suspected that plaintiff had SLE, and was
awaiting biopsy results from Arkansas Children's
Hospital. Id. He was concerned that she had OSA,
given her symptoms, snoring, and size. Id.
October 7, 2013, Storm was seen by David Williams, Ph.D., for
a psychiatric and diagnostic evaluation at the request of the
state agency for purposes of her 2013 disability application.
(Tr. 273-280). Storm's chief complaints were lupus and
kidney disease, secondary to lupus. Id. She was
diagnosed with lupus in 2006. Id. Stress increased
her symptoms and she recently had started a new job.
Id. In 2008, she experienced symptoms of depression
following the death of her fiancée. Id. She
denied current symptoms of depression. Id. She
reported having some close friends. Id. Storm had
experienced symptoms of daily anxiety with onset at the age
of 15. Id. She recounted experiencing panic attacks
every two to three months. Id. She smoked marijuana
daily, but last used a few months earlier. Id.
diagnosed anxiety disorder and assigned a Global Assessment
of Functioning (“GAF”) score of 61, which
indicated mild symptoms. Id. Storm's understanding
remained intact. Id. Her concentration, pace, and
persistence were adequate. Id. She was able to
manage her own finances. Id.
November 20, 2013, Storm returned to Dr. Berney at University
Health-Shreveport. (Tr. 327-330). She had joint stiffness for
30 minutes, and slight nausea, without vomiting from stress
about her job. Id. She had lower back and neck pain.
Id. She reported that she used illicit drugs, and
had multiple tattoos, without rashes. Id.
February 19, 2014, Storm was seen by Dr. Berney, who was
concerned that she had OSA, but her PCP refused to refer her
for a sleep study. (Tr. 330-333). Accordingly, Dr. Berney
referred her himself. Id. Storm's pelvic pain
had resolved. Id.
March 12, 2014, Storm was seen by nurse practitioner, Carrie
Genusa, for rash, easy bruising, cough, and medication
refills. (Tr. 318-320). Storm believed that her rash and
bruising were caused by her lupus. Id. She
complained of myalgia muscle aches all over her body.
Id. Upon examination, Storm had a very mild spotty
rash that was resolving. Id.
April 1, 2014, Storm returned to Genusa for cough, shortness
of breath, ...