United States District Court, S.D. Mississippi, Southern Division
PROPOSED FINDINGS OF FACT AND RECOMMENDATION
H. WALKER, UNITED STATES MAGISTRATE JUDGE.
Tommie Dexter, proceeding pro se and in forma
pauperis, filed a civil action pursuant to 42 U.S.C.
§ 405(g) for judicial review of the final decision of
the Commissioner of the Social Security Administration. The
Social Security Administration previously found Plaintiff
disabled as of June 1, 2008, due to poor vision. Doc.  at
50-65. A subsequent continuing disability review revealed
that her vision improved so that as of July 31, 2013, she no
longer was disabled. Id. at 46-47, 66-69. On
reconsideration, this decision was affirmed. Id. at
48-49. Plaintiff requested and was granted a hearing before
an administrative law judge (ALJ). Id. at 29-43, 81.
On February 29, 2016, the ALJ issued a decision finding that
Plaintiff's disability ended on July 31, 2013.
Id. at 16-23. The Appeals Council denied
Plaintiff's request for review. Id. at 5-7.
Thus, the decision of the Commissioner terminated
Plaintiff's disability insurance benefits under Title II
and supplemental security income under Title XVI.
Id. at 7. Plaintiff then filed the instant lawsuit
seeking review of the final decision of the Commissioner.
Doc. . Plaintiff filed a two-page “Response in
Opposition to Answer to Complaint”. Doc. . She
attached 40 pages of medical records in support of her
pleading. Doc. [10-1]. In turn, Defendant filed a
“Memorandum in Opposition to the Complaint”. 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).
the instant lawsuit involves a “medical
improvement” case rather than a claim for initial
disability benefits, the Commissioner must prove in all
relevant respects that the person is no longer disabled.
Waters v. Barnhart, 276 F.3d 716, 718-19 (5th Cir.
2002). In determining whether a claimant has experienced
medical improvement, the Commissioner applies an eight-step
sequential evaluation process for termination of Title II
claims, and a seven-step sequential evaluation process for
termination of Title XVI claims. 20 C.F.R. § 416.994(f)
& 20 C.F.R. § 404.1594(f); Griego v.
Sullivan, 940 F.2d 942, 944 n.1 (5th Cir. 1991). The
analysis is basically the same except that performance of
substantial gainful activity is not a factor used in the
Title XVI analysis. Hector v. Astrue, No. 08-979,
2010 WL 1141218, at *2 (W.D.La. Mar. 1, 2010). The eight-step
evaluation process considers (1) whether claimant is engaging
in substantial gainful activity; (2) if not gainfully
employed, whether the claimant has an impairment or
combination of impairments which meets or equals a listing;
(3) if impairments do not meet a listing, whether there has
been medical improvement; (4) if there has been medical
improvement, whether the improvement is related to the
claimant's ability to do work; (5) if there is
improvement related to claimant's ability to do work,
whether an exception to medical improvement applies; (6) if
medical improvement is related to the claimant's ability
to do work or if one of the first groups of exceptions to
medical improvement applies, whether the claimant has a
severe impairment; (7) if the claimant has a severe
impairment, whether the claimant can perform past relevant
work; and (8) if the claimant cannot perform past relevant
work, whether the claimant can perform other work.
Spearman v. Comm. of Social Security, 84 F.Supp.3d
531, 534-535 (N.D.Miss. 2015). In conducting this analysis,
the Commissioner bears the burden of proof and may terminate
benefits if substantial evidence demonstrates (1) that the
claimant has undergone medical improvement related to his
ability to do work; and (2) that the claimant is currently
able to engage in substantial gainful activity.
Griego, 940 F.2d at 943-44.
instant case, Plaintiff fails to argue either that the
ALJ's decision is not supported by substantial evidence
or that the ALJ failed to use the proper legal standards.
See Brown, 192 F.3d at 496. In her two-page
response, Plaintiff merely states that she is 55 years old,
had a total hip replacement at age 15, and has “had bad
eyes since 12 years”. Doc.  at 1. Although
Plaintiff attached 40 pages of medical records, she does not
cite to any of the records in her response. Nor does she
explain their significance as they relate to the cessation of
benefits. Plaintiff's failure to identify any point of
error is a sufficient reason to affirm the ALJ's
decision. See Shinseki v. Sanders , 556 U.S. 396,
409 (2009) (“the burden of showing that an error is
harmful normally falls upon the party attacking the
agency's determination”); American Airlines,
Inc. v. Department of Transp., 202 F.3d 788, 797
(5th Cir. 2000) (declining to remand where
appellant failed to show that error in administrative
proceeding was harmful). As explained in the Court's
order of March 10, 2017, “[t]he issues before the court
are limited to the exact issues properly raised in the
[parties'] briefs.” Doc.  at 1. Plaintiff has
raised no specific issue in her brief.
the undersigned finds that the ALJ did apply the proper legal
standard and that substantial evidence supports the ALJ's
decision. The ALJ applied the eight-step evaluation process
for disability cessation cases concerning Title II claims and
the seven-step process concerning Title XVI claims. Doc. 
at 17-22. The ALJ addressed each step in detail. The
ALJ's decision that Plaintiff was no longer disabled by
vision problems rests on substantial evidence. For example,
the ALJ noted that Plaintiff did not complain of any ongoing
visual problems at the February 3, 2016, hearing.
Id. at 20, 31-42. Plaintiff was able to engage in
activities that require good vision, such as driving, riding
a bicycle, and shopping in stores. Id. at 22, 152.
Dr. Robert Culpepper, a state agency medical consultant,
reported that Plaintiff had 20/30 visual acuity in each eye
and did not have a severe visual impairment. Id. at
ALJ hearing, Plaintiff suggested that other impairments now
rendered her disabled. These included back pain, asthma, a
permanent cold, arthritis, and headaches. Id. at 32,
37-40. However, in her memorandum, Plaintiff does not cite to
her back condition, or any other condition for that matter,
as a basis for reversing or remanding the ALJ's decision.
Nevertheless, as observed by the ALJ, no treating physician
reported significant physical limitations. Id. at
21. For example, Dr. Phillip Compton conducted a
comprehensive medical examination and reported that Plaintiff
should be able to sit, stand, or move about for eight hours a
day during an eight-hour work day. Id. at 203,
205-06. Dr. Compton further opined that Plaintiff should be
able to lift and carry heavy objects; handle and manipulate
small objects; and make appropriate occupational, personal,
and social adjustments. Id. at 206. As reflected in
the medical record, physical examinations consistently
revealed normal coordination, ambulation, gait, muscle tone,
range of motion, and strength in the upper and lower
extremities. Id. at 213, 216, 221, 225, 230, 274,
276-77, 279-80, 292-93, 447. Dr. William Hand reported that
Plaintiff “has had low back pain which has responded to
conservative treatment and is not severe.” Id.
at 282. Chest and pelvis x-rays revealed no abnormalities.
Id. at 284, 286. Dr. Harold Coulter attempted to
conduct a consultative examination, including examinations of
Plaintiff's coordination, station, and gait. Id.
at 288. However, Dr. Coulter reported that Plaintiff refused
to cooperate with a basic examination and swore at him.
Id. As a result, Dr. Coulter terminated the
examination. Id. at 21, 288. Based on the foregoing,
there was substantial evidence to support the ALJ's
finding of no disability related to Plaintiff's
complaints of back pain.
on the foregoing, the undersigned recommends that the
decision of the Commissioner be AFFIRMED.
OF RIGHT TO APPEAL/OBJECT
to 28 U.S.C. § 636(b)(1), any party who desires to
object to this report must serve and file written objections
within fourteen (14) days after being served with a copy
unless the time period is modified by the District Court. A
party filing objections must specifically identify those
findings, conclusions and recommendations to which objections
are being made; the District Court need not consider
frivolous, conclusive or general objections. Such party shall
file the objections with the Clerk of the Court and serve the
objections on the District Judge and on all other parties. A
party's failure to file such objections to the proposed
findings, conclusions and recommendation contained in this
report shall bar that party from a de novo determination by
the District Court. Additionally, a party's failure to
file written objections to the proposed findings,
conclusions, and recommendation contained in this report
within fourteen (14) days after being served with a copy
shall bar that party, except upon grounds of plain error,
from attacking on appeal the proposed factual findings and
legal conclusions that have been accepted by the district
court and for which there is no written objection.
Douglass v. United Services Automobile Association,
79 F.3d 1415, 1428-29 (5th Cir. 1996).