United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
Brian Millet, proceeding pro se, seeks judicial review
pursuant to Section 405(g) of the Social Security Act (the
“Act”) of the final decision of the Commissioner
of the Social Security Administration (the
“Commissioner”), denying plaintiff's claim
for a period of disability and disability insurance benefits
(“DIB”) under Title II of the Act. 42 U.S.C.
§ 1382c. This matter was referred to a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b) and
Local Rule 73.2E(B).
26, 2013, Millet filed a Title II application for a period of
disability and DIB, alleging a disability onset date of
December 11, 2008. (Tr. 205). After his claim was denied at
the agency level, plaintiff requested a hearing before an
Administrative Law Judge ("ALJ"), which was held on
April 29, 2015. (Tr. 95-126, 205). Plaintiff appeared in
person and was represented by counsel. Id. The ALJ
issued a decision on July 2, 2015, finding that Millet was
not disabled. (Tr. 202-13). Plaintiff requested review of the
ALJ's decision by the Appeals Council, which vacated and
remanded the decision for further consideration. (Tr. 217-19,
278). Upon remand, a second hearing was conducted on May 9,
2017. (Tr. 68, 127-74). Plaintiff appeared in person and,
although informed of the right to representation, chose to
appear and testify without the assistance of an attorney or
other representative. Id. The ALJ issued a decision
on November 15, 2017, again finding that Millet was not
disabled. (Tr. 65-85). Plaintiff requested review of the
second ALJ decision by the Appeals Council, which denied
plaintiff's request on July 17, 2018, and the ALJ's
decision became the Commissioner's final decision for
purposes of this court's review. (Tr. 1-5).
filed his complaint in this court on August 9, 2018. Record
Doc. No. 1. Millet timely filed his memorandum of facts and
law on February 4, 2019, after being granted an extension of
time to do so. Record Doc. Nos. 15, 16. Defendant timely
filed her reply memorandum of facts and law on March 12,
2019. Record Doc. No. 19.
STATEMENT OF THE ISSUES ON APPEAL
Millet is proceeding pro se, I must construe his allegations
broadly. Johnson v. Astrue, 291 Fed.Appx. 582, 585
(5th Cir. 2008) (citing Andrade v. Gonzales, 459
F.3d 538, 543 (5th Cir. 2006)). Doing so, plaintiff appears
to contend that the ALJ made the following errors:
A. The ALJ erred in finding that the relevant time period for
plaintiff's Title II disability insurance benefits claim
is from February 2, 2013 to June 30, 2014.
B. The ALJ erred in her findings as to plaintiff's
residual functional capacity, and in relying on the testimony
of a vocational expert, who testified that plaintiff could
perform the work of a janitor, housekeeping cleaner and/or
merchandise marker, and those jobs existed in significant
numbers in the national economy.
Record Doc. No. 16 at pp. 2-6.
ALJ'S FINDINGS RELEVANT TO ISSUE ON APPEAL
made the following findings relevant to the issue on appeal:
1. Millet met the insured status requirements of the Act
through June 30, 2014.
2. Plaintiff did not engage in substantial gainful activity
during the period from his alleged disability onset date of
December 11, 2008, through June 30, 2014.
3. Through June 30, 2014, he had the following severe
impairments: obesity, diabetes mellitus, coronary artery
disease, hypertension and depression.
4. Through June 30, 2014, plaintiff did not have an
impairment or combination of impairments that met or
medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
5. Through June 30, 2014, Millet had the residual functional
capacity to lift and/or carry 20 pounds occasionally and 10
pounds frequently; stand and/or walk for 6 hours per 8-hour
workday; sit for 6 hours per 8-hour workday; never climb
ladders, ropes or scaffolds; occasionally climb ramps and
stairs; and occasionally balance, stoop, kneel, crouch and
crawl. Plaintiff must avoid even moderate exposure to hazards
in the workplace such as dangerous moving machinery or
unprotected heights. Millet must also avoid concentrated
exposure to temperature extremes. Plaintiff is able to engage
in occupations that require only occasional direct
interaction with the general public and occasional routine
6. Through June 30, 2014, plaintiff was incapable of
performing any past relevant work.
7. Millet was born on January 18, 1962 and on June 30, 2014,
was 52 years old, which is defined as an individual closely
approaching advanced age.
8. Millet has a limited education and is able to communicate
9. Transferability of job skills is not an issue in this case
because plaintiff's past relevant work is unskilled.
10. Through June 30, 2014, considering plaintiff's age,
education, work experience and residual functional capacity,
there were jobs that existed in significant numbers in the
national economy that Millet could have performed.
11. Millet was not under a disability from December 11, 2008,
the alleged disability onset date, through June 30, 2014.
Standards of Review The function of this court on
judicial review is limited to determining whether there is
substantial evidence in the record to support the final
decision of the Commissioner as trier of fact and whether the
Commissioner applied the appropriate legal standards in
evaluating the evidence. Richard ex rel. Z.N.F. v.
Astrue, 480 Fed.Appx. 773, 776 (5th Cir. 2012) (citing
Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir.
2005)); Stringer v. Astrue, 465 Fed.Appx. 361, 363
(5th Cir. 2012) (citing Waters v. Barnhart, 276 F.3d
716, 716 (5th Cir. 2002)). Substantial evidence is more than
a scintilla but less than a preponderance and is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Richardson v.
Perales, 402 U.S. 389, 401 (1971); Richard ex rel.
Z.N.F., 480 Fed.Appx. at 776; Stringer, 465
Fed.Appx. at 363-64; Perez, 415 F.3d at 461. This
court may not reweigh the evidence in the record, try the
issues de novo or substitute its judgment for the
Commissioner's, even if the evidence weighs against the
Commissioner's decision. Halterman ex rel. Halterman
v. Colvin, 544 Fed.Appx. 358, 360 (5th Cir. 2013)
(citing Newton v. Apfel, 209 F.3d 448, 452 (5th Cir.
2000)); Stringer, 465 Fed.Appx. at 364. The
Commissioner, rather than the courts, must resolve conflicts
in the evidence. McCaskill v. Dep't of Health &
Human Servs., 640 Fed.Appx. 331, 332-33 (5th Cir. 2016)
(citing Perez, 415 F.3d at 461); Luckey v.
Astrue, 458 Fed.Appx. 322, 324 (5th Cir. 2011) (citing
Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir.
1990)); Newton, 209 F.3d at 452.
is entitled to make any finding that is supported by
substantial evidence, regardless whether other conclusions
are also permissible. See Arkansas v. Oklahoma, 503
U.S. 91 (1992). Despite this court's limited function, it
must scrutinize the record in its entirety to determine the
reasonableness of the decision reached and whether
substantial evidence supports it. Joubert v. Astrue,
287 Fed.Appx. 380, 382 (5th Cir. 2008) (citing
Perez, 415 F.3d at 461). Any findings of fact by the
Commissioner that are supported by substantial evidence are
conclusive. Ray v. Barnhart, 163 Fed.Appx. 308, 311
(5th Cir. 2006) (citing Perales, 402 U.S. at 390);
Perez, 415 F.3d at 461.
considered disabled and eligible for period of disability and
disability insurance benefits, plaintiff must show that she
is unable “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 twelve months.” 42 U.S.C.
§§ 423(d)(1)(A). The Commissioner has promulgated
regulations that provide procedures for evaluating a claim
and determining disability. 20 C.F.R. §§ 404.1501
to 404.1599 & appendices, §§ 416.901 to 416.998
(2016). The regulations include a five-step evaluation
process for determining whether an impairment prevents a
person from engaging in any substantial gainful
activity.Id. §§ 404.1520,
416.920; Alexander v. Astrue, 412 Fed.Appx. 719, 720
(5th Cir. 2011) (citing Audler v. Astrue, 501 F.3d
446, 447 (5th Cir. 2007)); Perez, 415 F.3d at 461.
The five-step inquiry terminates if the Commissioner finds at
any step that the claimant is or is not disabled.
claimant has the burden of proof under the first four parts
of the inquiry. If she successfully carries this burden, the
burden shifts to the Commissioner to show that other
substantial gainful employment is available in the national
economy that the claimant is capable of performing. When the
Commissioner shows that the claimant is capable of engaging
in alternative employment, the burden of proof shifts back to
the claimant to rebut this finding. Alexander, 412
Fed.Appx. 720-21; Perez, 415 F.3d at 461.
court weighs four elements of proof when determining whether
there is substantial evidence of disability:
“‘(1) objective medical facts; (2) diagnoses and
opinions of treating and examining physicians; (3) the
claimant's subjective evidence of pain and disability;
and (4) the claimant's age, education, and work
history.'” Chrisner v. Astrue, 249
Fed.Appx. 354, 356 (5th Cir. 2007) (quoting Wren v.
Sullivan, 925 F.2d 123, 126 (5th Cir. 1991)); accord
Perez, 415 F.3d at 463.
April 29, 2015 Hearing
first hearing, Millet testified that he was 53 years old and
had completed the 11th grade, but did not earn a
General Education Diploma ("GED"). (Tr. 101). He
testified that he had received no other training after the
11th grade. Id. Millet testified that as
of the date of the hearing, he was not working and had been
laid off from his job on December 11, 2008, which consisted
entirely of stripping and waxing floors, or “floor
maintenance, ” at the airport. (Tr. 101-03).
confirmed that he did some of the same floor maintenance for
Jani-Care Commercial Cleaning in 2013, but “didn't
do [the] job long, [be]cause [he] couldn't perform the
work.” (Tr. 102). Millet testified that he worked at
Jani-Care for only “a month.” (Tr. 102-03).
Millet confirmed that he worked at River Bend Truck Stop in
2014, where he was doing “the same thing, doing the
floors, sweeping.” (Tr. 103). He testified that he
considers no jobs available that have lighter work because he
“can't hold stuff in [his] hands.”
the medical treatment of his physical condition, Millet
testified that he saw Dr. Jose Cusco at Ochsner on April 14,
2015, and before Dr. Cusco he saw several other doctors, Dr.
Davis and Dr. Spiegel, at LSU Interim Hospital, sometime in
April 2014. (Tr. 100, 104-06). He testified that there was a
gap in his treatment because he was not able to afford the
doctor visits. (Tr. 106). Millet testified that he has been
diagnosed with diabetes, high blood pressure, arthritis, bad
knees and lower back pain. (Tr. 106). He testified that he
went into the emergency room the Monday after the Super Bowl
in 2014. (Tr. 106).
his mental health, Millet testified that he tries to go to
the doctor, but the doctor is never there. (Tr. 106-07). When
questioned about his drug use, he testified that he stopped
using drugs years ago but his medication interferes with his
drug testing. (Tr. 107). The ALJ identified a record of a
positive drug screen showing cocaine use in February 2014,
but Millet testified that the record was incorrect. (Tr.
107-08). The ALJ asked him whether it was correct that he was
counseled extensively on the dangers of continued use of
alcohol and cocaine, and Millet again testified that the
record was incorrect. (Tr. 108). Millet later testified that
he never used drugs, but was around drugs. (Tr. 112).
However, he then testified that he “did drugs in the
past” when he was 32 years old, but stopped using drugs
sometime in his 30s. (Tr. 113-14). When asked about the last
time he had treatment for depression, Millet responded that
he had treatment for ...