Parms v. Colvin

FELIX PARMS v. CAROLYN W. COLVIN, ACTING COMMISSIONER OFTHE SOCIAL SECURITY ADMINISTRATION

CIVIL ACTION NO. 14-330-BAJ-RLB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

August 6, 2015

NOTICE

Please take note that the attached Magistrate Judge's Report and Recommendation has been filed with the Clerk of the U.S. District Court for the Middle District of Louisiana.

Under 28 U.S.C. § 636(b)(1), you have 14 days from receipt of this Notice to file written objections to the findings of fact and conclusions of law recommended by the Magistrate Judge. A failure to object will constitute a waiver of your right to attack the factual findings on appeal.

ABSOLUTELY NO EXTENSION OF TIME WILL BE GRANTED TO FILE OBJECTIONS TO THE REPORT AND RECOMMENDATION.

Signed in Baton Rouge, Louisiana, on August 6, 2015.

/s/_________

RICHARD L. BOURGEOIS, JR.

UNITED STATES MAGISTRATE JUDGE

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Plaintiff, Felix Parms (Plaintiff), seeks judicial review of a final decision of the Commissioner of the Social Security Administration (Commissioner), pursuant to 42 U.S.C. § 405(g), denying Plaintiff's application for disability insurance benefits "under Title II and part A of Title XVIII of the Social Security Act." (Tr. 203). For the reasons given below, the Court recommends that the Commissioner's decision be AFFIRMED and Plaintiff's appeal be DISMISSED with prejudice.

I. PROCEDURAL HISTORY

On May 2, 2011, Plaintiff filed an application for disability insurance benefits. (Tr. 203-04). Plaintiff alleged that he became disabled as of May 1, 2010 because of prostate cancer. (Tr. 84). The claim was initially denied (Tr. 83) and Plaintiff filed a timely request for a hearing, which was held on February 29, 2012. (Tr. 63-82). Plaintiff, represented by counsel, appeared and testified at the hearing. (Tr. 67-78). Harris Rowzie, a Vocational Expert (VE), also provided testimony. (Tr. 79-81).

An unfavorable decision was rendered by the Commissioner, through the Administrative Law Judge (ALJ), on April 12, 2012. (Tr. 90).¹ The ALJ found that Plaintiff had not been under a disability since the alleged onset date of May 1, 2010, because Plaintiff did not suffer from any severe impairment. (Tr. 90-91). Plaintiff's request for review was granted by the Appeals Council on March 16, 2013 "under the abuse of discretion and new and material evidence provisions of the Social Security regulations." (Tr. 90-91). In its Order, the Appeals Council vacated the April 12, 2012 ALJ decision and remanded Plaintiff's application to a new ALJ. (Tr. 90-91).

A second hearing was held on August 19, 2013. (Tr. 33-62). Plaintiff, represented by counsel, appeared and testified at the hearing. (Tr. 36-38, 52-60). Vocational expert, Wendy Klamm (Tr. 47-51, 61), and medical expert, Dr. Ollie Raulston (Tr. 38-46), also provided testimony. The ALJ issued an unfavorable decision denying Plaintiff's application for a second time on September 26, 2013. (Tr. 21-27). Plaintiff's second request for review was denied by the Appeals Council on March 27, 2014. (Tr. 1-5). The ALJ's decision rested as the final decision when the Appeals Council denied Plaintiff's second request for review. See 20 C.F.R. § 404.981 ("The Appeals Council's decision, or the decision of the administrative law judge if the request for review is denied, is binding unless you . . . file an action in Federal district court . . . ."). The ALJ's final decision is now ripe for review under 42 U.S.C. § 405(g).

II. STANDARD OF REVIEW

This Court's review of the Commissioner's decision is limited to an inquiry into whether there is substantial evidence to support the findings of the Commissioner and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401(1971); Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence has been defined as "'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938) (defining "substantial evidence" in the context of the National Labor Relations Act, 29 U.S.C. § 160(e))). The Fifth Circuit has further held that substantial evidence "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 no contrary medical evidence." Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983) (quotations omitted). Conflicts in the evidence are for the Commissioner "and not the courts to resolve." Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The court may not reweigh the evidence, try the case de novo, or substitute its own judgment for that of the Commissioner even if it finds that the evidence preponderates against the Commissioner's decision. See, e.g., Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) ("This is so because substantial evidence is less than a preponderance but more than a scintilla."); Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988) ("we must carefully scrutinize the record to determine if, in fact, such evidence is present; at the same time, however, we may neither reweigh the evidence in the record nor substitute our judgment for the Secretary's"); Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (same).

If the Commissioner's decision is supported by substantial evidence, then it is conclusive and must be upheld. Estate of Morris v. Shalala, 207 F.3d 744, 745 (5th Cir. 2000). If the Commissioner fails to apply the correct legal standards, or fails to provide a reviewing court witha sufficient basis to determine that the correct legal principles were followed, it is grounds for reversal. Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987).

III. ALJ'S DETERMINATION

In determining disability, the Commissioner, through the ALJ, works through a five-step sequential evaluation process. See 20 C.F.R. § 404.1520(a)(4). The burden rests upon the claimant throughout the first four steps of this five-step process to prove disability. If the claimant is successful in sustaining his or her burden at each of the first four steps, the burden shifts to the Commissioner at step five. See Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991) (explaining the five-step process). First, the claimant must prove he is not currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). Second, the claimant must prove his or her impairment is "severe" in that it "significantly limits your physical or mental ability to do basic work activities . . . ." 20 C.F.R. § 404.1520(c). At step three the ALJ must conclude the claimant is disabled if he proves that his or her impairments meet or are medically equivalent to one of the impairments contained in the Listing of Impairments. See 20 C.F.R. § 404.1520(d) (step three of sequential process); 20 C.F.R. pt. 404, subpt. P, app. 1 (Listing of Impairments). Fourth, the claimant bears the burden of proving he is incapable of meeting the physical and mental demands of his or her past relevant work. 20 C.F.R. § 404.1520(f).

If the claimant is successful at all four of the preceding steps then the burden shifts to the Commissioner to prove, considering the claimant's residual functional capacity, age, education and past work experience, that he or she is capable of performing other work. 20 C.F.R § 404.1520(g)(1). If the Commissioner proves other work exists which the claimant can perform, the claimant is given the chance to prove that he or she cannot, in fact, perform that work. Muse, 925 F.2d at 789.

Here, the ALJ issued an unfavorable decision based on the evidence contained in the administrative record. Specifically, the ALJ found:

1. Plaintiff met the insured status requirements of the Act through December 31, 2014.

2. Plaintiff had not engaged in substantial gainful activity since May 1, 2010, the alleged onset date.

3. Plaintiff had the following severe impairments: moderate degree lumbar scoliosis, mild degenerative disc disease L1-S1, mild to moderate degenerative joint disease L3-4, history of prostate cancer status post radical prostatectomy and hypertension. Plaintiff's urinary incontinence, however, was not a severe impairment.

4. Plaintiff did not have an impairment that met or medically equaled a Listing—specifically, Listing 1.04 (Disorders of the Spine).

5. Plaintiff had the residual functional capacity to generally perform light work. Specifically, Plaintiff could lift 20 pounds occasionally and 10 pounds frequently; stand and/or walk for 6 hours and sit for 6 hours in an 8-hour workday; never climb ladders, ropes, and scaffolds; occasionally balance, stoop, kneel, crouch and crawl; frequently reach overhead with both arms; and be in an environment free of concentrated humidity.

6. Plaintiff was capable of performing his past relevant work as a residence supervisor (DOT No. 187.167-186), as it is generally performed in the national economy.

(Tr. 23-27).

IV. DISCUSSION

Plaintiff raises several arguments in support of his appeal. Concerning the ALJ's step 4 finding, Plaintiff argues that the ALJ erred by failing to resolve a conflict between the testimony of the vocational expert at the first hearing and the vocational expert at the second hearing. (R. Doc. 12 at 12). Moreover, Plaintiff believes the ALJ's decision at the second hearing to obtain testimony from a vocational expert regarding his past work was inconsistent with the Order of the Appeals Council. (R. Doc. 12 at 16-18). Additionally, Plaintiff suggests the ALJ committed reversible error in applying the "as generally performed" standard to his past relevant work as a residence supervisor, as this was a "composite job." (R. Doc. 12 at 13-14). Next, Plaintiffcontends that the ALJ "misstated and omitted...