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Mosley v. Saul

United States District Court, E.D. Louisiana

September 11, 2019

DAVID M. MOSLEY
v.
ANDREW SAUL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION

         SECTION: “J” (4)

          REPORT AND RECOMMENDATION

          KAREN WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE

         This is 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.

         I. Factual Summary

         Mosley 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. 10-2.

         In 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.

         In 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, Id.

         After 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.

         II. Standard of Review

         The 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).

         Substantial 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. 1973).

         The 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).

         In 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).

         III. Analysis

         a. Listing Level 1.07 and ...


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