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Bracey v. Colvin

United States District Court, Fifth Circuit

August 14, 2013

CHARLES JEREMIAH BRACEY, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

LINDA R. ANDERSON, Magistrate Judge.

Charles Bracey, proceeding pro se, appeals the final decision denying his application for Supplemental Security Income ("SSI"), and moves to modify the administrative record submitted on appeal. The Commissioner requests an order pursuant to 42 U.S.C. § 405(g), affirming the final decision of the Administrative Law Judge. Having carefully considered the hearing transcript, the medical records in evidence, and all the applicable law, the undersigned recommends that the decision be affirmed for the reasons that follow.

Factual and Procedural Background

On July 23, 2009, Bracey protectively filed an application for SSI alleging that he became disabled on September 1, 2007. The application was denied initially and on reconsideration. He appealed the denial and on December 17, 2010, Administrative Law Judge Edwin E. Kerstine ("ALJ") rendered an unfavorable decision finding that Plaintiff had not established a disability within the meaning of the Social Security Act. The Appeals Council denied Plaintiff's request for review and he now appeals that decision.

Bracey has a tenth grade education and was approximately 35 years old when he filed his application for benefits. He alleges disability due to a gunshot wound he sustained in 1997, though records indicate that he later returned to work. He has past relevant work experience as a loader, delivery driver, dishwasher, and cook. He also testified that he stopped working in 2006 because of transportation problems and has not looked for work since that time.[1]

After reviewing the evidence, the ALJ concluded that Plaintiff was not disabled under the Social Security Act. At step one of the five-step sequential evaluation, [2] the ALJ found Plaintiff had not engaged in substantial gainful activity since the date of his application, July 23, 2009. At steps two and three, the ALJ found that although his history of a gunshot wound to his left leg was severe, it did not meet or medically equal any listing. At step four, the ALJ found that Plaintiff could not return to his past relevant work, but has the residual functional capacity to:

perform light work as defined in 20 C.F.R. § 416.967 (b) except the claimant could walk/stand no more than three hours; he can lift twenty pounds occasionally and ten pounds frequently; the claimant has a slight limitation in pushing/pulling; the claimant cannot climb ropes, ladders or scaffolds; he can occasionally climb stairs, steps and ramps; the claimant can occasionally bend, stoop, crawl, squat, crouch and twist; the claimant has no limitation with right arm and hand; he can occasionally grasp, handle, hold with his left hand; the claimant must avoid industrial hazardous and moving mechanical parts; he cannot climb in the workplace; and he cannot operate machinery requiring foot control on the left side.

Based on vocational expert testimony, the ALJ concluded at step five, that given Plaintiff's age, education, work experience, and residual functional capacity, he could perform work as a door greeter, assembler, and lot attendant.

Standard of Review

Judicial review in social security appeals is limited to two basic inquiries: "(1) whether there is substantial evidence in the record to support the [ALJ's] decision; and (2) whether the decision comports with relevant legal standards." Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996) (citing Carrier v. Sullivan, 944 F.2d 243, 245 (5th Cir. 1991)). Evidence is substantial if it is "relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion; it must be more than a scintilla, but it need not be a preponderance." Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995) (quoting Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992)). This Court may not re-weigh the evidence, try the case de novo, or substitute its judgment for that of the ALJ, even if it finds evidence that preponderates against the ALJ's decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994).

Discussion

Plaintiff contends on appeal that the ALJ erred in denying his application for benefits. He advises that his 1997 gunshot wound required extensive medical treatment for approximately four months, and that the SSI benefits he received as a result were terminated in 2003 or 2004. He alleges that the ALJ erred in denying his most recent application because he continues to experience excruciating pain in his left leg and foot, which prevent his return to work. In support, he files a Motion to Amend/Correct the Record to include evidence relating to his prior application and cessation of benefits. He also maintains that the record is incomplete because it fails to include his underlying application for SSI benefits. For the reasons set forth below, the Court finds the ALJ's decision comports with all relevant legal standards and is supported by substantial evidence.

Applying the severity standards set forth in Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985) and 20 C.F.R. § 416.920(c), the ALJ concluded that although Plaintiff's leg pain was a severe impairment, it did not preclude him from performing a reduced range of light work.[3] In making this determination, the ALJ considered both the objective medical evidence and Plaintiff's subjective complaints. The ALJ found that while Plaintiff's leg impairment could reasonably be expected to produce the alleged symptoms, his statements regarding its intensity, persistence, and limiting effects did not credibly establish that he was precluded from all work activities. When a claimant's statements concerning the intensity, persistence, or limiting effects of symptoms are not supported by objective evidence, the ALJ has the discretion to make a finding on their credibility. Foster v. Astrue, 277 F.Appx. 462 (5th Cir. 2008). The ALJ's determination is entitled to considerable deference and is supported by substantial evidence here.

Plaintiff testified at the administrative hearing that he experiences continued swelling and numbness in his left leg and foot from his 1997 injury. The resulting constant and unremitting pain is allegedly so severe that he cannot walk, sit, or stand for extended periods and has to elevate his leg to obtain relief. Specifically, he testified that he can only sit for 20 minutes before he has to stand up and cannot stand for longer than 15 minutes at a time. He also denied that he can walk more than half-a-block or lift 20 pounds. He testified that he also has difficulty grasping things with his left hand because the bullet entered through that hand, but he acknowledged that he has no difficulty with his dominant right hand. He ...


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