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West v. Astrue

United States District Court, Fifth Circuit

January 7, 2014

JAMES DEWAYNE WEST, Plaintiff,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION

JOHN M. ROPER, Sr., Chief Magistrate Judge.

Plaintiff, James Dewayne West ("West") filed a [1] Complaint on June 25, 2012 for judicial review of Defendant Commissioner of Social Security's ("Commissioner") denial of West's application for disability benefits under the Social Security Act. Before the Court is West's [13] Motion for Judgement on the Pleadings filed on September 16, 2013, and Defendant's Memorandum in Opposition [16] filed on December 10, 2013 and Plaintiff has not filed a Rebuttal to the Memorandum in Opposition.

On January 26, 2009, West filed his application for a period of disability and disability insurance benefits asserting that he had become disabled since December 15, 2005. [11, pp.100, 129-30]. The Administrative Law Judge ("ALJ") issued a decision denying Plaintiff's application initially and on reconsideration [11, pp.102-105, 108-110] on November 9, 2010, following an administrative hearing, an ALJ issued an unfavorable decision. [11, pp 11-28]. The Appeals Council denied Plaintiff's request for review. [11, pp.5-8, 14]. The Court finds that Plaintiff has exhausted his administrative remedies and has timely filed this action in this Court. The matter is ripe for review under 42 U.S.C.§§405(g), 1383(c)(3).

Plaintiff was born on July 23, 1963, thus he was 47 years old at the time of the ALJ's decision. He attended special education classes and completed the eleventh grade [11, pp at 15, 59-60, 63-67, 192]. Plaintiff has past relevant work as a galvanizer supervisor, a carpenter/construction worker, and a cable puller [11, pp. 88-93]. Plaintiff alleged he has been unable to work since December 15, 2005, due to back and foot pain [11, p.186]. Plaintiff's date last insured for DIB was December 31, 2008 [11, p. 156].

Plaintiff and a vocational expert (VE) testified at the hearing [11, p. 66-98]. Plaintiff testified he was unable to spell, could read "very little, " and was only able to perform simple arithmetic [11, pp. 67-68]. Plaintiff explained in 1998, he was injured on-the-job when a 60 foot beam was dropped on him. [11, pp.57, 68-73] As a result of the accident, he alleges that broke his shoulder, ribs, right thumb, right foot and suffered compression fractures of the spine at T9 and T10. Id He asserts he underwent multiple surgeries which ultimately resulted Dr. McCloskey assigning him a five percent impairment to the body as a whole due to his back injury. Id Plaintiff further recounted that Dr Rodriquez also performed several foot surgeries and assigned a twenty five percent impairment to the right foot. Id Plaintiff also explained that physicians have assigned a twenty five percent impairment to the right thumb and a ten percent impairment to the left wrist. [11, p58].

Since the 1998 accident, Plaintiff testified he had back and foot pain [11, at 73-74]. After the accident, Plaintiff testified his doctors released him to work at light duty with limited standing, limited walking and no climbing or squatting. Id Plaintiff's last job was as a galvanizing supervisor with APSI. He attests that in this position no computer skills were required and there was no physical labor or paper work. [11, pp.60, 65] At the hearing, Counsel recounted that at some point during aforementioned employment position, Plaintiff's employer attempted to increase his duties by adding more paper and computer work and Plaintiff was unable to complete these tasks. Id Subsequently, Plaintiff sought a job with Job Crafters but did not inform them about his medication or his prior injuries. In February of 2006, he was terminated due to his disabilities. Id He contends that since 2005, he has been unable to hold a position because of his back, and leg pain, gout, hypertension, depression and illiteracy. [11, p.61] At the hearing, Plaintiff also presented the opinion of Dr. Charles Barnes from April of 2009 affirming Plaintiff's position that he is unable to work. Id

Plaintiff testified that prior to his date last insured, he could walk "a couple a hundred yards, " and could stand up to 30 minutes before needing to sit, but could not bend at the waist or stoop or squat to retrieve an item on the floor [11, pp. 78, 80]. He asserted that prior to his date last insured, he could sit "30 minutes or so, " he could not bend over and pick up a styrofoam cup. [11, p 74] lift up to twenty pounds, and comfortably carry 10 pounds [11, p. 75]. Plaintiff further explained that prior to his date last insured, he was unable to climb stairs and had back pain when he extended his arms in front of him for more than a few minutes [11, pp.76-80]. He testified that prior to his date last insured, his girlfriend assisted him with dressing and personal care, and did all of the household chores [11, pp 79-84].

In deciding whether Plaintiff was disabled under the Social Security Act, the ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. 404.1520(a) (2013)2 (Doc. 11, at 18-28). The ALJ found Plaintiff had not engaged in substantial gainful activity during the period from his alleged disability onset date of December 15, 2005, through his date last insured of December 31, 2008 [11, p. 20]. Next, the ALJ found Plaintiff had the following severe impairments: a compression fracture of the T10 vertebra, fracture of the right foot with surgical repair, and back pain. Id. Through the date last insured, the ALJ discerned that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1 [11]. After considering the record, the ALJ found Plaintiff, through his date last insured, had the residual functional capacity (RFC) to perform less than the full range of light work as defined in 20 C.F.R. 404.1567(b)3 [11]. Specifically, the ALJ found Plaintiff could walk up to two hundred yards at a time, and sit and stand each up to thirty minutes at a time [11]. The ALJ further found Plaintiff could sit and stand for a total of eight hours a day, but required a sit/stand option [11]. The ALJ determined that Plaintiff could not climb ladders, ropes, ramps, stairs, or scaffolds, and could not squat [11, p. 24].

With that RFC, through his date last insured, the ALJ found Plaintiff could not perform his past relevant work [11, p. 26]. However, after considering Plaintiff's age, education, work experience, and RFC, along with testimony from a VE, the ALJ determined that through his date last insured there were representative occupations that existed in significant numbers in the national economy Plaintiff could perform, such as a bench assembler, an escort vehicle driver, a pizza delivery driver, and a surveillance systems monitor [11, pp. 27, 95-97]. As the ALJ found Plaintiff could perform other work, he found Plaintiff had not been disabled, as defined in the Social Security Act, at any time from December 15, 2005, his alleged disability onset date, through December 31, 2008, his date last insured [11, p. 28].

The federal courts review the Commissioner's denial of social security benefits only to ascertain whether (1) the final decision is supported by substantial evidence and (2) the Commissioner used the proper legal standards to evaluate the evidence. Newton v. Apfel, 109 F.3d 448, 452 (5th Cir. 2000) (citing Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999)). "If the Commissioner's findings are supported by substantial evidence, they must be affirmed." Id. (citing Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995)). "Substantial evidence is such relevant evidence as a reasonable mind might accept to support a conclusion. It is more than a mere scintilla and less than a preponderance." Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); see also Fraga v. Bowen, 810 F.2d 1296, 1302 (5th Cir. 1987). The court does not re-weigh the evidence in the record, try the issues de novo, or substitute its judgment for the Commissioner's, even if the evidence preponderates against the Commissioner's decision. Brown, 192 F.3d at 496. "Conflicts in the evidence are for the [Commissioner] and not the courts to resolve." Id. (quoting Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990)).

Plaintiff has the ultimate burden of proving he is entitled to benefits. Masterson v. Barnhart, 309 F.3d 267, 271 (5th Cir. 2002). To meet this burden, Plaintiff must provide competent evidence to authenticate a medical or psychological condition that prevents him from engaging in substantial gainful work activity. 20 C.F.R. 404.1512(a) (2012). For a claimant to demonstrate he is entitled to DIB, he must prove not only that he is disabled but also that he became disabled prior to the expiration of his insured status. See Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992). "Any impairment which had its onset or became disabling after the [date last insured] cannot serve as the basis for a finding of disability." Owens v. Heckler, 770 F.2d 1276, 1280 (5th Cir. 1985). Thus, Plaintiff had to show that prior to his date last insured he was not able to engage in any substantial gainful activity because of a medically determinable physical or mental impairment that could have been expected to result in death or had lasted or was expected to last for a continuous period of not less than twelve months. See 20 C.F.R. 404.1505(a). The Court finds Plaintiff failed to prove he was disabled prior to the expiration of his date last insured.

Plaintiff contends substantial evidence does not support the ALJ's finding that he did not meet listing 1.03 as to reconstructive surgery or surgical arthrodesis of a major weight-bearing joint prior to his date last insured as described 20 C.F.R.§404 his condition medically equals the listing. [13, pp. 5-6]. Defendant contends that the substantial evidence does support the ALJ's finding.

Listing 1.03 provides as follows:

Reconstructive surgery or surgical arthrodesis of a major weight-bearing joint, with inability to ambulate effectively, as defined in 1.00B2b, and return to effective ambulation did not occur, or ...

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