JOHN D. LOVE, Magistrate Judge.
On May 14, 2018 Tonya Kaye Hill ("Plaintiff") initiated this civil action pursuant to the 42 U.S.C. § 205(g) for judicial review of the Commissioner's denial of Plaintiff's application for Social Security benefits. (Doc. No. 1.) Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct all proceedings and order the entry of judgment in this case. (Doc. No. 13, at 1-2.) For the reasons stated below, the Court
On July 7, 2015, Plaintiff protectively filed an application for social security benefits, and on July 16, 2015, Plaintiff protectively filed an application for supplemental security income. See Transcript ("Tr.") at 103-04, 220-29. The applications alleged a disability beginning October 1, 2014. Id. at 222, 224. The claim was initially denied on November 25, 2015, and upon reconsideration on March 10, 2016. Id. at 151-56, 160-63. Plaintiff sought review of the denial at an administrative hearing and had a video hearing on February 13, 2017. Id. at 35-63. The ALJ issued an unfavorable decision on May 11, 2017. Id. at 10-22. Plaintiff sought review, and on March 13, 2018, the Appeals Council denied Plaintiff's request for review. Id. at 1-6. Therefore, the ALJ's decision became the Commissioner's final decision. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000). Plaintiff has filed the instant action for review.
Title II provides for federal disability insurance benefits and Title XVI provides for supplemental security income for the disabled. Judicial review of the denial of disability benefits under section 205(g) of the Act, 42 U.S.C. § 405(g), is limited to "determining whether the decision is supported by substantial evidence in the record and whether the proper legal standards were used in evaluating the evidence." Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994) (quoting Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990)); Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991) (per curiam). A finding of no substantial evidence is appropriate only where there is a conspicuous absence of credible choices or no contrary medical evidence. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988) (citing Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)). Accordingly, the Court "may not reweigh the evidence in the record, nor try the issues de novo, nor substitute [the Court's] judgment for the [Commissioner]'s, even if the evidence preponderates against the [Commissioner]'s decision." Bowling, 36 F.3d at 435 (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)); see Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993); Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992); Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985). Rather, conflicts in the evidence are for the Commissioner to decide. Spellman, 1 F.3d 357, 360 (5th Cir. 1993) (citing Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990)); Anthony, 954 F.2d 289, 295 (5th Cir. 1992) (citing Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir. 1983)). A decision on the ultimate issue of whether a claimant is disabled, as defined in the Act, rests with the Commissioner. Newton v. Apfel, 209 F.3d 448, 455-56 (5th Cir. 2000); SSR 96-5p, 61 Fed. Reg. 34471 (July 2, 1996).
"Substantial evidence is more than a scintilla but less than a preponderance—that is, enough that a reasonable mind would judge it sufficient to support the decision." Pena v. Astrue, 271 F. App'x 382, 383 (5th Cir. 2003) (citing Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994)). Substantial evidence includes four factors: (1) objective medical facts or clinical findings; (2) diagnoses of examining physicians; (3) subjective evidence of pain and disability; and (4) the plaintiff's age, education, and work history. Fraga v. Bowen, 810 F.2d 1296, 1302 n.4 (5th Cir. 1987). If supported by substantial evidence, the decision of the Commissioner is conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389, 390 (1971). However, the Court must do more than "rubber stamp" the ALJ's decision; the Court must "scrutinize the record and take into account whatever fairly detracts from the substantiality of evidence supporting the [Commissioner]'s findings." Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985).
A claimant for disability has the burden of proving a disability. Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). The Act defines "disability" as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 416(i)(1)(A), 423(d)(1)(A). A "physical or mental impairment" is an anatomical, physiological, or psychological abnormality which is demonstrable by acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
In order to determine whether a claimant is disabled, the Commissioner must utilize a five-step, sequential process. Villa, 895 F.2d at 1022. A finding of "disabled" or "not disabled" at any step of the sequential process ends the inquiry. Id.; see Bowling, 36 F.3d at 435 (citing Harrell, 862 F.2d at 475). Under the five-step sequential analysis, the Commissioner must determine at Step One whether the claimant is currently engaged in substantial gainful activity. At Step Two, the Commissioner must determine whether one or more of the claimant's impairments are severe. At Step Three, the Commissioner must determine whether the claimant has an impairment or combination of impairments that meet or equal one of the listings in Appendix I. Prior to moving to Step Four, the Commissioner must determine the claimant's Residual Functional Capacity ("RFC"), or the most that the claimant can do given his impairments, both severe and non-severe. Then, at Step Four, the Commissioner must determine whether the claimant's impairments are severe enough to prevent him from performing his past relevant work. Finally, at Step Five, the Commissioner must determine whether the claimant can perform other work available in the local or national economy. 20 C.F.R. §§ 404.1520(b)-(f), 416.920(b)-(f). An affirmative answer at Step One or a negative answer at Steps Two, Four, or Five results in a finding of "not disabled." See Villa, 895 F.2d at 1022. An affirmative answer at Step Three, or an affirmative answer at Steps Four and Five, creates a presumption of disability. Id. The burden of proof is on the claimant for the first four steps, but shifts to the Commissioner at Step Five if the claimant shows that he cannot perform his past relevant work. Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989) (per curiam).
The ALJ made the following findings in her May 11, 2017 decision:
The ALJ determined that Plaintiff is not disabled under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. Id. at 22.
Plaintiff alleges error in the ALJ's determination on three bases: (1) the ALJ failed to properly explain why Plaintiff did not meet or medically equal Listing 1.02; (2) the ALJ's RFC finding is not supported by substantial evidence because the ALJ improperly weighed a consultative examiner's opinion; and (3) the ALJ's mental RFC findings are not supported by substantial evidence because the ALJ did not base her mental RFC findings on any medical opinions. (Doc. No. 15, at 1.) The Commissioner contends that: (1) Plaintiff has not shown a Listed impairment; and (2) the ALJ's RFC finding was proper because the ALJ afforded the consultative examiner proper weight and the ALJ properly considered Plaintiff's mental limitations. (Doc. No. 17, at 4, 7, 10.)
Plaintiff asserts that the ALJ's determination that Plaintiff's impairments did not meet Listing 1.02 is not supported by substantial evidence because the ALJ failed to properly explain her finding. (Doc. No. 15, at 6-10.) The Commissioner contends that the ALJ's determination is supported by substantial evidence because the ALJ provided an explanation for her determination, and Plaintiff did not meet her burden of providing medical findings that support each of the criteria for Listing 1.02. (Doc. No. 17, at 4-5.)
At Step Three of the sequential disability analysis, the ALJ must determine whether a claimant has an impairment or combination of impairments that meet or equal a listed impairment in Appendix I. 20 C.F.R. § 416.920(d); 20 C.F.R. § Pt. 404, Subpt. P, App. 1 ("Listing"). Further, a Step Three finding requires the ALJ to discuss the evidence offered in support of a claimant's claim for disability and to explain why she found the claimant not to be disabled. Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007). If the ALJ determines that a claimant's impairment meets or equals a listed impairment, then the claimant will be found "disabled without considering age, education, and work experience." 20 C.F.R. §§ 404.1520(d), 416.920(d). Listing 1.02 is for a major dysfunction of joints, due to any cause, and states:
20 C.F.R. pt. 404, Subpt. P, App. 1 § 1.02 (emphasis added).
The term "ambulate effectively" is defined in Listing 1.00(B)(2)(b) as follows:
20 C.F.R. pt. 404, Subpt. P, App. 1 § 1.00(B)(2)(b) (emphasis added).
In her decision, the ALJ stated "[Plaintiff's] feet impairments do not meet Listing 1.02, major dysfunction of a joint because they do not preclude her from ambulating effectively as defined in 1.00(B)(2)(b)." Tr. at 13. Plaintiff asserts that the statement "because they do not preclude her from ambulating effectively" is the only support that the ALJ provided as an explanation for her determination. (Doc. No. 17, at 7.) Moreover, to show that the ALJ's determination is not supported by substantial evidence, Plaintiff cities to medical evidence that allegedly shows Plaintiff cannot ambulate effectively without using a walker. Id. at 8-9 (citing to Tr. at 481, 535, 628). Specifically, Plaintiff points to the opinion of David Okumbor, M.D., who noted that Plaintiff will need a cane or walker to ambulate further than fifteen feet. Id. at 8 (citing Tr. at 481). In response, the Commissioner argues that the ALJ's explanation was proper because Plaintiff allegedly failed to provide objective medical evidence proving she cannot ambulate effectively. (Doc. No. 17, at 5.) To support the ALJ's determination, the Commissioner points to medical evidence in the record showing conflicting statements as to whether Plaintiff can ambulate with or without a walker. Id. at 6 (citing Tr. at 340, 352-53, 359-61, 368). The Commissioner acknowledges the opinion of Dr. Okumbor but argues there is still substantial evidence supporting the ALJ's determination that Plaintiff did not qualify for Listing 1.02. Id. at 6-7.
Turning to Plaintiff's claim that the ALJ failed to properly explain her Listing 1.02 determination, the record reflects that the ALJ only provided the brief notation, "because [Plaintiff's impairments] do not preclude her from ambulating effectively," to support her conclusion. See Tr. at 13. The ALJ does not support her Listing 1.02 determination with any citations to any medical evidence in the record. Id. Indeed, the record reflects that the ALJ failed to show which evidence she relied on in making her determination. Id. Further, the record shows there is conflicting medical evidence regarding whether Plaintiff needs a walker to ambulate effectively. See id. at 340, 352-53, 359-61, 368, 481, 535, 628. The ALJ must discuss the evidence in the record and explain why she found that Plaintiff's impairments did not meet Listing 1.02. See Audler, 501 F.3d at 448.
Accordingly, the ALJ fails to properly discuss the evidence offered in support of Plaintiff's claim for Listing 1.02, and the ALJ fails to explain why she found Plaintiff did not qualify for Listing 1.02. See id. Thus, with respect to Step Three, the ALJ's determination is not supported by substantial evidence in the record.
For these reasons, Plaintiff's substantial rights have been impacted by the ALJ's omissions and the case should be remanded back to the ALJ. Specifically, on remand the ALJ is to consider and discuss the relevant evidence regarding whether Plaintiff meets Listing 1.02 at Step Three.
Plaintiff alleges the ALJ's RFC finding is not supported by substantial evidence because the ALJ improperly weighed the opinion evidence of Dr. Okumbor. (Doc. No. 15, at 10-13.) Specifically, Plaintiff argues that the ALJ should have (1) afforded more weight to Dr. Okumbor's opinion or (2) provided an explanation for why Dr. Okumbor's opinion was given little weight. Id. at 12-13. Plaintiff further alleges that the ALJ's mental RFC finding is not supported by substantial evidence because there is no medical opinion on which the ALJ could have supported her finding. Id. at 13-15. The Court has already determined that the ALJ's finding on Listing 1.02 is not supported by substantial evidence. Thus, this case will be remanded for further proceedings and a new Step Three determination. As a result, the Court need not address Plaintiff's RFC arguments at this time.
In light of the foregoing, pursuant to the fourth sentence of 42 U.S.C. § 405(g), the Court