United States District Court, S.D. Mississippi, Southern Division
PHILLIP D. COOPER, PLAINTIFF
CAROLYN W. COLVIN Acting Commissioner, DEFENDANT
PROPOSED FINDINGS OF FACT AND RECOMMENDATION
H. WALKER UNITED STATES MAGISTRATE JUDGE.
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. . Plaintiff filed for benefits alleging
disability from bipolar disorder, anxiety, depression and
high blood pressure beginning October 16, 2012. Doc.  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.
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.
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. .
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
Process, Constitutional Rights, Abuse of
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.  at 5, 7, 14. He also argues that
the Social Security Administration generated unfavorable
evidence to usurp any valid evidence favoring Plaintiff's
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.  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).
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
ALJ Decisions and Other Evidence
memorandum, Plaintiff refers to previous ALJ decisions, as
well medical evidence that predates the disability period
under consideration in the instant case. Doc.  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 ...