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Cooper v. Colvin

United States District Court, S.D. Mississippi, Southern Division

February 1, 2018

PHILLIP D. COOPER, PLAINTIFF
v.
CAROLYN W. COLVIN Acting Commissioner[1], DEFENDANT

          PROPOSED FINDINGS OF FACT AND RECOMMENDATION

          ROBERT H. WALKER UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Phillip D. Cooper, proceeding pro se, filed the instant lawsuit seeking review of the Commissioner of Social Security's final decision denying Plaintiff's claim for disability insurance benefits and supplemental security income. Doc. [1]. Plaintiff filed for benefits alleging disability from bipolar disorder, anxiety, depression and high blood pressure beginning October 16, 2012. Doc. [10] at 167-76, 198. Plaintiff was 52 years old at the date of alleged disability onset. Id. at 25, 167, 171. He has a high school education and three years of college, with past relevant work as a construction laborer and truck driver. Id. at 25, 199. The Commissioner denied his application at the initial level and on reconsideration. Id. at 100-43. Plaintiff requested and was granted a hearing before an Administrative Law Judge (ALJ). Id. at 40-73, 152-53.

         The ALJ issued a decision on January 9, 2015, denying disability. Id. at 14-27. The ALJ found that Plaintiff had severe impairments of obesity, hypertension, bipolar disorder, and anxiety. Id. at 16. The ALJ determined that the impairments did not meet the requirements for presumptive disability at step three of the evaluation. Id. at 17. The ALJ concluded that Plaintiff retained the residual functional capacity (RFC) to perform medium work, with the following additional limitations: he is limited to simple routine tasks requiring only simple work-related decisions, in a work environment free of fast-paced production requirements; he can have only occasional change in a routine work setting and occasional interaction with the public and he can work in close proximity to others, but must work independently, not in a team. Id. at 19. The ALJ found Plaintiff was unable to perform past relevant work. Id. at 25. However, relying on the testimony of a vocational expert, the ALJ found that Plaintiff could perform a significant number of jobs in the national economy in such occupations as hand packager, dishwasher, and floor cleaner. Id. at 26. Accordingly, the ALJ found Plaintiff was not disabled.

         The Appeals Council denied Plaintiff's request for review of the ALJ's decision. Plaintiff then filed the instant lawsuit. Id. at 4-9. Proceeding pro se, Plaintiff filed the instant complaint and memorandum in support of his complaint. Liberally construed the memorandum raises the following issues: (1) whether the ALJ denied Plaintiff's due process rights and constitutional rights or committed an abuse of discretion; (2) whether the ALJ erred by not considering previous ALJs' decisions, evidence dated prior to Plaintiff's disability onset date, or evidence dated after the ALJ's decision; (3) whether the ALJ properly evaluated Plaintiff's credibility; and (4) whether the ALJ properly evaluated Plaintiff's mental limitations. See Doc. [11].

         Law and Analysis

         The 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).

         A 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.

         The 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 employment. Id.

         Due Process, Constitutional Rights, Abuse of Discretion

         In his first assignment of error, Plaintiff argues about the conduct of his hearing. He alleges that the ALJ violated his due process right to confront/cross-examine witnesses “or to see verbatim transcripts of testimonial evaluation of examiners.” Doc. [11] at 5, 7, 14. He also argues that the Social Security Administration generated unfavorable evidence to usurp any valid evidence favoring Plaintiff's claim. Id.

         To establish denial of due process in an administrative hearing, Plaintiff must show substantial prejudice. See Ka Fung Chan v. INS , 634 F.2d 248, 258 (5th Cir. 1981). There is nothing in the record to suggest the ALJ violated Plaintiff's due process rights. He was represented during the administrative proceedings and before the ALJ. Doc. [10] at 145. Plaintiff testified at the hearing regarding his condition and limitations. Plaintiff's representative cross-examined the vocational expert. The Social Security Administration (SSA) informed Plaintiff of the procedure for reviewing information in his file prior to the date of the hearing. Id. at 157. The SSA sent a letter to Plaintiff and Plaintiff's representative informing them that the exhibits to be used at the hearing were available for review. Id. at 237-38. The regulations provide for subpoenas; however, there is no record that Plaintiff or his attorney requested a subpoena for witnesses or documents prior to the ALJ hearing. See 20 C.F.R. § 404.950(d)(2), 416.950(d)(2).

         In conducting its administrative review, the SSA ordered consultative examinations by state agency physicians, which is within the purview of the Commissioner. The Social Security Regulations specify that the Commissioner may order a consultative examination to make a proper determination when evidence is needed that is not contained within the records of the medical sources. See 20 CFR 404.1519a(b)(1). In ordering consultative exams, the ALJ was simply carrying out her duty to develop the record. See Pearson v. Bowen, 866 F.2d 809, 812 (5th Cir. 1989). There is no merit to Plaintiff's argument that the ALJ violated his due process rights by generating unfavorable evidence to usurp evidence favoring Plaintiff's claim. Moreover, in his written decision, the ALJ considered Plaintiff's extensive medical and vocational records. For the most part, Plaintiff's memorandum simply reargues the weight and credibility of the evidence. Plaintiff's disagreement with the weight or credibility of the evidence does not create a due process or constitutional claim. This Court is not to re-weigh the evidence or resolve conflicts in the evidence. See Johnson, 864 F.2d at 343. Those are tasks reserved for the Commissioner. Chambliss v. Massanari, 269 F.3d 520, 523 (5th Cir. 2001); Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir.1991).

         Other ALJ Decisions and Other Evidence

         In his memorandum, Plaintiff refers to previous ALJ decisions, as well medical evidence that predates the disability period under consideration in the instant case. Doc. [11] at 14-15. He attached as an exhibit, a transcript index from a previous ALJ's decision. Doc. [11-3]. In the instant case, the ALJ did not reopen two previous unfavorable decisions. Nor did the ALJ discuss the findings in those two prior cases. Plaintiff also attached as exhibits to his ...


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