United States District Court, E.D. Louisiana
DAVID M. MOSLEY
ANDREW SAUL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION
REPORT AND RECOMMENDATION
WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE
an action for judicial review of a final decision of the
Commissioner of Social Security pursuant to Title 42 U.S.C.
§ 405(g). The Commissioner denied David Mosley's
(“Mosley”) claim for Disability Insurance
Benefits under Title II of the Social Security Act, Title 42
U.S.C. § 1382(c). The matter was referred to the
undersigned United States Magistrate Judge pursuant to Title
28 U.S.C. § 636(b) and Local Rule 19.02E(b), for the
submission of Proposed Findings and Recommendations.
is a fifty-three (53) year old male who last worked as a as a
tug boat captain. Rec doc. 10-2, Tr. 12. He complains that
his disability began on March 20, 2014 (original onset date)
and then on February 9, 2015 (amended onset date), because of
lumbar disc, severe wrist pain despite many surgeries,
cervical spondylosis, thoracic spondylosis and avascular
necrosis in the hips. Rec. doc. 12. He alleges that he
suffered an injury while steering a boat with difficult
steering equipment. Rec. doc. 487. On November 30, 2015,
Mosley filed an application for Title II disability and
disability insurance benefits. The claim was initially denied
on March 16, 2016. Rec. doc. 10-2. Mosley thereafter
submitted a request for hearing on May 13, 2016, before
Administrative Law Judge Thomas G. Henderson. The hearing
took place on June 6, 2017, and on August 28, 2017, the ALJ
found that Mosley has not been under a disability from
February 9, 2015 through the date of the decision. Rec. doc.
reaching the decision, the ALJ found that Mosley met the
insured status requirements through December 31, 2019.
Finding 1, Rec. doc. 10-2. Tr. 18. The ALJ also found that
Mosley has not engaged in substantial gainful activity since
February 9, 2015, the alleged onset date. Finding 2, Rec.
doc. 10-2, p. 18. The ALJ further found that Mosley has left
upper extremity osteoarthritis and lumbar degenerative disc
disease which are severe impairments. Finding 3, Rec. doc.
10-2, Tr. 18. The ALJ found that Mosley does not have an
impairment or combination of impairments that meet or
medically equal the severity of one of the listed
impairments. Finding 4, Rec. doc. 10-2, Tr. 19. The ALJ
further found that Mosley has the residual functional
capacity to perform light work as defined in 20 CFR
404.1567(b) except with occasional postural and occasional
left upper extremity handling and fingering. Finding 5, Rec.
doc. 10-2, Tr. 19.
Findings 6-8, the ALJ found that Mosley was unable to work in
his past job, is an individual closely approaching advanced
age, has a limited education and is able to communicate in
English. Findings 6-8, Rec. doc. 10-2, Tr. 26. In Finding 9,
the ALJ found that the transferability of job skills is not
material to a determination of disability because the
Medical-Vocational Rules Framework supported a finding that
Mosley was “not disabled” even if he had
transferable skills. Finding 9, Id. Finally, the ALJ
concluded that considering Mosley's age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that the claimant can perform such as representative
occupations. housekeeping and routers. Finding 10,
being denied administratively, Mosley filed a complaint in
this court challenging the denial of his application for
benefits. Rec. doc. 1. Mosley contends that the ALJ's
opinion is not based upon substantial evidence because he
meets Listing Level 1.07. Rec. doc. 12, p. 7. He also
contends that the ALJ's Residual Functional Capacity
light-work finding is not based upon substantial evidence.
Rec. doc. 12, p. 9. The Commissioner contends that (1) the
ALJ properly assessed Mosley's Impairments at Step Three
and (2) the ALJ properly assessed Plaintiff's RFC.
See Rec. doc. 16.
Standard of Review
role of this Court on judicial review under Title 42 U.S.C.
§ 405(g) is to determine whether there is substantial
evidence in the record to support the determination of the
fact finder. The Court may not re-weigh the evidence, try
issues de novo, or substitute its judgment for that
of the Secretary. Allen v. Schweiker, 642 F.2d 799,
800 (5th Cir. 1981). If supported by substantial
evidence, the Secretary's findings are conclusive and
must be affirmed. Richardson v. Perales, 402 U.S.
389, 390 (1971) (citing 402 U.S.C. § 405(g)); see
also Wilkinson v. Schweiker, 640 F.2d 743, 744
(5th Cir. 1981).
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. See Richardson, 402 U.S. at 401. It 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 “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.
concept of disability 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
continuous period of not less than twelve months.”
See 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
abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42
U.S.C. § 423(d)(3).
determining whether a claimant is capable of engaging in any
substantial gainful activity, the Secretary applies a
five-step sequential evaluation process. The rules governing
the steps of this evaluation process are: (1) a claimant who
is working and engaging in a substantial gainful activity
will not be found to be disabled no matter what the medical
findings are; (2) a claimant will not be found to be disabled
unless he has a “severe impairment;” (3) a
claimant whose impairment meets or is equivalent to an
impairment listed in Appendix 1 of the regulations will be
considered disabled without the need to consider vocational
factors; (4) a claimant who is capable of performing work
that he has done in the past must be found “not
disabled;” and (5) if a claimant is unable to perform
his previous work as a result of his impairment, then factors
such as his age, education, past work experience, and
residual functional capacity must be considered to determine
whether is he can do other work. See Villa v.
Sullivan, 895 F.2d 1019, 1022 (5th Cir.
1990). The burden of proof is on the claimant for the first
four steps but shifts to the Secretary at step five.
Anderson v. Sullivan, 887 F.2d 630, 632-33
(5th Cir. 1989).
Listing Level 1.07 and ...