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Millet v. Berryhill

United States District Court, E.D. Louisiana

September 30, 2019

BRIAN MILLET
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION

         SECTION “A” (2)

          REPORT AND RECOMMENDATION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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).

         I. PROCEDURAL HISTORY

         On July 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).

         Plaintiff 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.

         II. STATEMENT OF THE ISSUES ON APPEAL

         Because 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.

         III. ALJ'S FINDINGS RELEVANT TO ISSUE ON APPEAL

         The ALJ 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 workplace changes.
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 in English.
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.

(Tr. 68-84).

         IV. ANALYSIS

         A. 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.

         The ALJ 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.

         To be 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.[1]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. Id.

         The 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.

         The 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.

         B. Factual Background

         1. April 29, 2015 Hearing

         At the 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).

         Plaintiff 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.”

         As to 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).

         As to 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 ...


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