United States District Court, S.D. Mississippi, Northern Division
PROPOSED FINDINGS OF FACT AND RECOMMENDATION
H. WALKER UNITED STATES MAGISTRATE JUDGE
Molgado, proceeding pro se and in forma
pauperis, filed an appeal from the denial of her claim
for disability and disability insurance benefits under the
Social Security Act (SSA). Her claim was denied by the
Commissioner at the initial level and on reconsideration.
Doc.  at 97-100, 107-10. She requested and was granted a
hearing before an Administrative Law Judge (ALJ).
Id. at 29-53, 112-13. The ALJ issued a decision
dated December 10, 2015, finding Plaintiff not disabled.
Id. at 15-24. The ALJ concluded that Plaintiff had
severe impairments of plantar fasciitis status post left heel
fasciotomy, a history of HIV without Acquired Immune
Deficiency Syndrome, and obesity. Id. at 17. The ALJ
further concluded that Plaintiff possessed the residual
functional capacity (RFC) to perform sedentary work, except
that she should avoid concentrated exposure to extreme heat,
cold and humidity; and she should not work from unprotected
heights. She can only stoop or climb stairs or ramps
occasionally. She cannot kneel, crouch, crawl, or climb
ladders, ropes, or scaffolds. She can engage in occasional
bilateral lower extremity pedal operation or push/pull.
Id. at 20. Although Plaintiff is unable to perform
past relevant work as a management trainee, the ALJ relied on
the testimony of a vocational expert and concluded that
Plaintiff can still perform other jobs that exist in
significant numbers in the national economy. Id. at
23-24. Thus, the ALJ found her to be not disabled.
Id. at 24. On December 18, 2016, the Appeals Council
denied Plaintiff's motion for review. Id. at
5-8. Plaintiff filed the instant litigation to appeal the
one-page complaint, Plaintiff alleged that she has HIV and
problems with her legs and feet. Doc. . She also alleges a
musculoskeletal disorder and plantar and heel spurs. She
asserts that she has a weight problem, arthralgia in her
right hip, and her legs swell all the time. She alleges being
in severe pain every day. According to Plaintiff, these
problems prevent her from working. She is in much pain
everyday whether walking, standing, or sitting down.
January 11, 2017, the Court entered a standard order setting
deadlines and a briefing schedule. Doc. . The Court
instructed that within 30 days after Defendant files its
answer and transcript of the record, “Plaintiff must
file and serve a memorandum brief setting forth all errors
which Plaintiff contends entitle Plaintiff to relief.”
The Court further instructed that the brief must contain (1)
a statement of exact issues presented for review; (2) a
statement of the case; (3) an argument divided into separate
sections for each issue, with each contention supported by
specific reference to the portion of the federal court relied
upon and by citations to statutes, regulations, and cases;
and (4) a short conclusion stating the relief sought.
Defendant filed an answer and administrative transcript on
April 18, 2017. Doc.  & . Accordingly,
Plaintiff's brief was due no later than May 18, 2017. As
of August 17, 2017, Plaintiff had not filed a memorandum
brief in support of her complaint. Accordingly, the Court
entered an Order to Show Cause giving Plaintiff until
September 1, 2017, to explain in writing why her complaint
should not be dismissed for failure to comply with the
Court's order of January 11, 2017. Doc. . On August
28, 2017, Plaintiff filed a one-page response to the show
cause order. Doc. . Plaintiff simply re-iterated the
basis for her disability claim. She repeated her health
issues and argued that she cannot work because standing,
sitting, and walking a very painful. Her legs hurt, her feet
swell, and her back hurts. She quit working because of the
pain. The Commissioner has not filed a memorandum in support
of its decision, presumably because Plaintiff failed to file
the appropriate memorandum in support of her appeal.
federal district court reviews the Commissioner's
decision only to determine whether the final decision is
supported by substantial evidence and whether the
Commissioner used the proper legal standards to evaluate the
evidence. Brown v. Apfel, 192 F.3d 492, 496 (5th
Cir. 1999); Martinez v. Chater, 64 F.3d 172, 173
(5th Cir. 1995). If the court determines the
Commissioner's decision to be supported by substantial
evidence, then the findings are conclusive and the court must
affirm the decision. Richardson v. Perales, 402 U.S.
389, 390 (1971). See also 42 U.S.C. § 405(g).
This standard requires supporting evidence that is
“‘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. v. NLRB, 305 U.S. 197, 229
(1938)). The court is not permitted to “reweigh the
evidence in the record, nor try any issues de novo, nor
substitute our judgment for the judgment of the
[Commissioner], even if the evidence preponderates against
the [Commissioner's] decision.” Johnson v.
Bowen, 864 F.2d 340, 343 (5th Cir. 1988).
“‘Conflicts in the evidence are for the
[Commissioner] and not the courts to resolve.'”
Brown, 192 F.3d at 496 (quoting Selders v.
Sullivan, 914 F.2d 614, 617 (5th Cir. 1990)). While the
court may alter the Commissioner's decision if based upon
faulty legal analysis, the court should defer to the
Commissioner's legal conclusions if they are within a
permissible meaning of the statutory or regulatory language.
Chevron, U.S.A., Inc. v. National Resources Defense
Council, 467 U.S. 837, 843-44 (1984).
claimant bears the burden of proving the existence of a
medically determinable impairment that has prevented the
claimant from engaging in substantial gainful employment. 42
U.S.C. § 423 (d)(1)(A); 42 U.S.C. § 423 (d)(5). The
Social Security Administration (SSA) utilizes a five-step
sequential process to determine whether a claimant is
disabled. 20 C.F.R. § 404.1520(a), § 404.920(a).
Under this analysis, the ALJ may decide a claimant is
disabled if he finds that (1) the claimant is not employed in
substantial gainful activity; (2) the claimant has a severe,
medically determinable impairment; (3) the claimant's
impairment meets or equals one of the listings in appendix 1
to subpart P of § 404; (4) the impairment prevents the
claimant from performing any past relevant work; and (5) the
impairment prevents the claimant's ability to adjust to
performing any other work. Id.
claimant initially bears the burden of proving disability
under the first four steps, but the burden shifts to the SSA
for the fifth step. Chapparo v. Bowen, 815 F.2d
1008, 1010 (5th Cir. 1987). Therefore, if the
claimant proves that he is unable to perform past relevant
work, the SSA must demonstrate that the claimant can perform
another occupation that exists in significant numbers in the
national economy. The burden then shifts back to the claimant
to establish that he cannot perform this alternative
undersigned finds that Plaintiff's complaint should be
dismissed, because she has failed to identify any error by
the Commissioner in denying Plaintiff's application for
disability benefits. Plaintiff simply re-states in cursory
fashion the alleged conditions that prevent her from working.
Plaintiff fails to identify any error of law. Nor does she
explain how the ALJ's decision was not supported by
substantial evidence. She fails to point to any evidence in
the record to support her contention of disability.
Essentially, Plaintiff has failed to provide the Court with a
memorandum brief that remotely conforms to the detailed
instructions provided in its order of January 11, 2017.
Nevertheless, a review of the administrative record reveals
that substantial evidence supports the ALJ's findings
regarding Plaintiff's impairments, RFC, and ability to
perform work based on her age, education, work experience,
found that Plaintiff had severe impairments of plantar
fasciitis status post-left heel fasciotomy, HIV, and obesity.
The ALJ gave a lengthy and detailed analysis of the medical
evidence, addressing each of the conditions cited by
Plaintiff in her complaint and response to show cause. Doc.
 at 17-20. Plaintiff has failed to identify any medical
evidence that supports a finding of additional severe
impairments. The ALJ took into account Plaintiff's ankle
condition, HIV, and obesity in his assessment. Plaintiff
asserts she also suffers from musculoskeletal problems,
conditions with her hip and lower extremities, and back pain.
However, the ALJ considered the report of Dr. Syed Sadiq, who
examined Plaintiff and noted that her back revealed no
tenderness and showed normal range of motion in the lumbar
spine. He also noted that her upper extremities were normal
with no swelling or crepitus in the hips, knees, and ankles.
Plaintiff exhibited good active range of motion and 5/5
strength in all extremities. Id. at 19. The ALJ
specifically found that Plaintiff had no documented history
of abnormality of the back or hips, and that sensory and
motor examination have been essentially normal for the lower
extremities. Id. at 21. In other words, the ALJ
cited to substantial medical evidence supporting his decision
not to include additional severe impairments related to
alleged impairments to Plaintiff's back, legs, or hips.
ALJ's assignment of sedentary work, with additional
limitations, is also supported by substantial evidence. The
ALJ gave significant weight to the opinion of Dr. Sadiq,
whose findings and conclusions the ALJ found were not
inconsistent with sedentary work and show arguably even more
functionality. Id. at 22. Although the ALJ gave only
limited weight to the opinions of Dr. Richard Walker and Dr.
Karen Hulett, both of these reports nevertheless support a
finding that Plaintiff is capable of performing at least
sedentary work. Dr. Walker completed a residual functional
capacity assessment concluding that Plaintiff is capable of
performing a reduced range of light work, with some
additional limitations. Id. Dr. Karen Hulett
concurred with Dr. Walker's opinion. Id. The ALJ
noted that no treating physician has opined disability for
Plaintiff. Id. The opinions of Dr. Sadiq, Dr.
Walker, and Dr. Hulett constitute substantial evidence
supporting the ALJ's assignment of limitations.
complaint and response, Plaintiff asserts that she suffers
from disabling pain. The ALJ considered Plaintiff's
subjective complaints of pain and determined they were not
substantiated by objective medical evidence. Id. at
21. He also found Plaintiff's complaints to be not
entirely credible. Id. The ALJ noted that no
treating source endorsed complaints of chronic lower
extremity swelling or the need to elevate her feet for long
periods. Id. He also noted the absence of medical
evidence for anything more than occasional mild to trace
edema or swelling and no chronic inflammation of the lower
extremity joints. Id. Moreover, the ALJ found no
indicated abnormality of gait or ambulation. Id.
Rather, the medical records frequently indicated that she is
ambulatory. Id. The ALJ further explained that
Plaintiff takes only over-the counter ibuprofen for pain and
discomfort. Id. Plaintiff fails to identify any
objective medical evidence in the record that would support a
finding of disabling pain.
the ALJ's decision that Plaintiff can perform other work
is supported by substantial evidence. The ALJ relied on
testimony from a vocational expert to conclude that Plaintiff
is capable of performing other work in the national economy,
when taking into consideration Plaintiff's age,
education, work experience, and RFC. Doc.  at 23-24. The
vocational expert's testimony constitutes substantial
evidence supporting the ALJ's conclusion. See Carey
v. Apfel, 230 F.3d 131, 146 (5th Cir. 2000).