JEFFREY L. CURETON, Magistrate Judge.
This case was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b). The Findings, Conclusions and Recommendation of the United States Magistrate Judge are as follows:
Plaintiff LaPaula Taylor ("Taylor"), appearing pro se, filed this action pursuant to Sections 405(g) and 1383(c)(3) of Title 42 of the United States Code for judicial review of a final decision of the Commissioner of Social Security denying her claim for a period of disability, disability insurance benefits ("DIB") under Title II, and supplemental security income ("SSI") benefits under Title XVI of the Social Security Act ("SSA"). In May 2006, Taylor protectively applied for social security benefits, alleging that her disability began on May 16, 2004. (Transcript ("Tr.") 104, 237-47.) Her applications were denied initially and on reconsideration, and Taylor requested a hearing before an administrative law judge ("ALJ"). (Tr. 104, 122-29, 131-38.) On July 9, 2008 the ALJ held a hearing and issued a decision on September 26, 2008 that Taylor was not disabled. (Tr. 29-58, 84-95, 104.) Thereafter, in October 2008, Taylor filed new applications for DIB and SSI. (Tr. 97, 104.) Subsequently, the state agency found that Taylor was disabled as of September 24, 2008. (Tr. 97, 104.) The Appeals Council, on July 7, 2009, consolidated Taylor's claims and remanded her case for a new decision. (Tr. 96-100.) The ALJ held a supplemental hearing on July 1, 2010. (Tr. 59-79.) Thereafter, on August 24, 2010, the ALJ issued a decision finding that Taylor was not disabled. (Tr. 101-16.) On February 17, 2012, the Appeals Council denied Taylor's request for review, leaving the ALJ's decision to stand as the final decision of the Commissioner. (Tr. 1-4.)
Disability insurance is governed by Title II, 42 U.S.C. § 404 et seq., and SSI benefits are governed by Title XVI, 42 U.S.C. § 1381 et seq., of the SSA. In addition, numerous regulatory provisions govern disability insurance and SSI benefits. See 20 C.F.R. Pt. 404 (disability insurance); 20 C.F.R. Pt. 416 (SSI). Although technically governed by different statutes and regulations, "[t]he law and regulations governing the determination of disability are the same for both disability insurance benefits and SSI." Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).
The SSA defines a disability as a medically determinable physical or mental impairment lasting at least twelve months that prevents the claimant from engaging in substantial gainful activity. 42 U.S.C. §§ 423(d), 1382(a)(3)(A); McQueen Apfel, 168 F.3d 152, 154 (5th Cir. 1999). To determine whether a claimant is disabled and thus entitled to disability benefits, a five-step analysis is employed. 20 C.F.R. §§ 404.1520, 416.920. First, the claimant must not be presently working at any substantial gainful activity. Substantial gainful activity is defined as work activity involving the use of significant physical or mental abilities for pay or profit. 20 C.F.R. §§ 404.1527, 416.972. Second, the claimant must have an impairment or combination of impairments that is severe. 20 C.F.R. §§ 404.1520(c), 416.920(c); Stone Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985). Third, disability will be found if the impairment or combination of impairments meets or equals an impairment listed in the Listing of Impairments ("Listing"), 20 C.F.R. Pt. 404, Subpt. P, App. 1. 20 C.F.R. §§ 404.1520(d), 416.920(d). Fourth, if disability cannot be found on the basis of the claimant's medical status alone, the impairment or impairments must prevent the claimant from returning to her past relevant work. Id. §§ 404.1520(e), 416.920(e). Fifth, the impairment must prevent the claimant from doing any work, considering the claimant's residual functional capacity, age, education, and past work experience. Id. §§ 404.1520(f), 416.920(f); Crowley v. Apfel, 197 F.3d 197, 197-98 (5th Cir. 1999). At steps one through four, the burden of proof is on the claimant to show she is disabled. Crowley, 197 F.3d at 198. If the claimant satisfies this responsibility, the burden shifts to the Commissioner to show that there is other gainful employment the claimant is capable of performing in spite of his existing impairment. Id.
A denial of disability benefits is reviewed only to determine whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence in the record as a whole. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Hollis v. Bowen, 837 F.2d 1378, 1382 (5th Cir. 1988). Substantial evidence is such relevant evidence as a responsible mind might accept to support a conclusion. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). It is more than a mere scintilla but less than a preponderance. Id. A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision. Id. This Court may neither reweigh the evidence in the record nor substitute its judgment for the Commissioner's but will carefully scrutinize the record to determine if evidence is present. Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000); Hollis, 837 F.2d at 1383.
From a reading of her pro se brief, it is difficult to determine exactly what issues Taylor raises on appeal. It appears that Taylor attempts to raise the following issues:
(Plaintiff's Brief ("Pl.'s Br.") at 1-2.)
The ALJ, in his August 24, 2010 decision found that Taylor last met the disability insured status requirements under Title II of the SSA on March 31, 2009. (Tr. 106.) The ALJ stated that Taylor had not engaged in substantial gainful activity after May 16, 2004, her original alleged onset date of disability. (Tr. 107.) The ALJ further found that Taylor had the following "severe" impairments: (1) right knee osteoarthritis, (2) cervical degenerative disc disease, (3) hypertension, (4) anemia, (5) obesity, (6) bipolar disorder, (7) post-traumatic stress disorder ("PTSD"), and (8) mood disorder. (Tr. 107.) Next, the ALJ held that none of Taylor's impairments or combination of impairments met or equaled the severity of any impairment in the Listing. (Tr. 107.) As to Taylor's RFC, the ALJ stated:
(Tr. 108.)
In support of his physical RFC determination, the ALJ relied, inter alia, on the following evidence: (1) the testimony of Dr. Eppstein, the medical expert at the July 1, 2010 hearing before the ALJ, that Taylor was, in essence, capable of performing light work
In support of his mental RFC determination as well as his analysis under the mental impairment "technique,"
The ALJ further opined, based on his RFC assessment, that Taylor was unable to perform any of her past relevant work. (Tr. 114.) However, because there were jobs that existed in significant numbers in the national economy that Taylor could perform, the ALJ concluded that Taylor was not disabled. (Tr. 115-16.)
Taylor appears to argue that the ALJ erred when he discounted Dr. Jensen's February 12, 2009 GAF rating of 45
Taylor also attached to her brief various medical records, including records dated in August 2009, October 2009, and December 2009 that contained GAF ratings of 55 as well as records dated in July 2007 that contained a GAF rating of 65.
"When new evidence becomes available after the Secretary's decision and there is a reasonable probability that the new evidence would change the outcome of the decision, a remand is appropriate so that this new evidence can be considered." Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) (citing 42. U.S.C. § 405(g) and Latham v. Shalala, 36 F.3d 482, 483 (5th Cir. 1994)). The Court does not issue factual findings on new medical evidence but is to determine whether to remand for the consideration of the newly presented evidence. Haywood v. Sullivan, 888 F.2d 1463, 1471 (5th Cir. 1989). "To justify a remand, 42 U.S.C. § 405(g) requires that the evidence is `new' and `material' as well as a showing of `good cause' for failing to provide this evidence at the original proceedings." Ripley, 67 F.3d at 555. To be new, the evidence must not be merely cumulative of the evidence already in the administrative record. Pierre v. Sullivan, 884 F.2d 799, 803 (5th Cir. 1989). For evidence to be material, it must relate to the time period for which disability benefits were denied and there must be a reasonable probability that the new evidence would change the outcome of the Commissioner's decision. Ripley, 67 F.3d at 555; see Sullivan, 884 F.2d at 803.
In this case, Plaintiff, at the very least, has provided no evidence showing good cause for failing to provide these medical records at the proceedings before the ALJ and the Appeals Council. These records, which are dated in 2007 and 2009, were available prior to both the ALJ's August 24, 2010 decision and the Appeals Council's February 17, 2012 decision. Plaintiff has given no reason as to why these medical records were not submitted until after these decisions were issued. Consequently, remand is not required.
Taylor also complains about that the ALJ's characterization of her volunteer hours and caring for her grandchildren was not accurate. Specifically, Taylor states:
(Pl.'s Br. at 2.) In support of her claims, Taylor attached to her brief a letter from Tonya M. Mabra, MS ("Mabra"), manager at the Union Gospel Mission of Tarrant County Women's Center. In the letter, Mabra stated that Taylor was a former resident of Union Gospel Mission, was never an employee at Union Gospel Mission, was a participant in Union Gospel Mission's Work Readiness Program, earned approximately $25 per week during parts of 2006 and 2007 as a program stipend, and worked shifts of approximately 3 to 4 hours.
The ALJ discussed the fact that Taylor had stood for six hours as a volunteer several times in his decision, including in his analysis at Step One and in the RFC determination. At Step One, the ALJ found that Taylor did not engage in substantial gainful activity subsequent to May 16, 2004, her alleged onset date of disability. (Tr. 107.) As to this issue, the ALJ further stated:
(Tr. 107 (internal citations omitted).)
Further, alter reviewing the evidence in the record, the ALJ found that Taylor had the RFC to do the following: (1) lift and carry 20 pounds occasionally and 10 pounds frequently; (2) stand and walk (individually or in combination) at least 6 hours in an 8-hour workday; (3) sit at least 6 hours in an 8-hour workday. (Tr. 108.) The ALJ further found that Taylor could otherwise perform the full range of light work except that she: (1) could not climb ladders, scaffolds, or ropes; (2) could only occasionally climb ramps or stairs, balance, stoop, kneel, crouch or crawl; (3) could only have superficial contact with the public; and (4) was limited to jobs with a reasoning development level of 1 or 2. Id. In his RFC analysis, the ALJ stated:
(Tr. 110 (internal citations omitted) (emphasis in original).)
As to Taylor caring for her grandchildren, the ALJ mentioned this fact several times in his decision, including the following statements:
(Tr. 112-14 (internal citations omitted).)
Even assuming the ALJ erred in stating that Taylor had stood for 6 hours instead of 3-4 hours in her work/volunteer history, Taylor has pointed to no error that resulted from such a conclusion. As to the ALJ's determination at Step One, the ALJ, notwithstanding how long Taylor had performed volunteer work at the shelter, found that Taylor had not engaged in substantial gainful activity after May 16, 2004. (Tr. 107.) The ALJ did not find that Taylor's subsequent volunteer hours at the shelter in 2006 or 2007 constituted substantial gainful activity. As to the RFC determination, there was substantial evidence
As to the ALJ's findings that Taylor cared for her grandchildren, Taylor at the July 1, 2010 hearing before the ALJ specifically stated that she had five grandchildren and she took "care of them when their mothers bring them over." (Tr. 72.) Thus, it does not appear that the ALJ erred in stating several times in his decision that Taylor had five grandchildren and cared for them at times as this is specifically what Taylor testified to at the hearing. The ALJ never stated in his decision that Taylor cared for the children by herself. Furthermore, even assuming that the ALJ erred in stating that Taylor cared for her grandchildren, Taylor again has pointed to no error that resulted from such a conclusion.
As to his analysis of the "B" criteria as required in the "special technique" in which the ALJ found that Taylor was moderately limited in her social functioning, there is other evidence in the record that supports such a determination without considering how Taylor cared for her grandchildren. Specifically, the ALJ noted that there was evidence that Taylor regularly accepted assistance from a family member and readily accepted input from others regarding her behavior. (Tr. 112.) In addition, as to his analysis of Taylor's credibility, there is also other evidence, as pointed out by the ALJ, that supports the ALJ's credibility determination without considering how Taylor cared for her grandchildren.
To be entitled to relief, the claimant must establish that the ALJ erred and that the ALJ's error casts into doubt the existence of substantial evidence to support the ALJ's decision. Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988); see also Falco v. Shalala, 27 F.3d 160, 163-64 (5th Cir.1994) ("That [the ALJ] did not follow formalistic rules in his articulation compromises no aspect of fairness or accuracy that this process is designed to ensure."). Taylor has not made such a showing. Any errors in the ALJ's statements concerning the number of hours Taylor volunteered at the shelter or how she cared for her grandchildren were harmless. "Procedural perfection in administrative proceedings is not required" as long as "the substantial rights of a party have [not] been affected." Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988). The ALJ's decision is not subject to reversal, even though there may be substantial evidence in the record that would have supported the opposite conclusion, because substantial evidence also supports the conclusion that was reached by the ALJ. See Dollins v. Astrue, 2009 WL 1542466, at *5 (N.D. Tex. June 2, 2009) (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997) and Steed v. Astrue, 524 F.3d 872, 874 (8th Cir. 2008)). Consequently, remand is not required.
Taylor also appears to argue that the ALJ erred in not finding that her conditions of manic depression, bipolar disorder, chronic hypertension, high cholesterol, and obstetric arthritis disease were severe at Step Two. (Pl.'s Br. at 2.) In this case, contrary to Taylor's claims, the ALJ specifically found at Step Two that Taylor suffered from several severe impairments including hypertension, bipolar disorder, PTSD, and mood disorder. (Tr. 107). As to her claim that she suffers from the severe conditions of manic depression (as separate from her bipolar disorder, mood disorder, and PTSD), high cholesterol, and obstetric arthritis, Taylor has pointed to no evidence in the record that supports such claims. Even assuming Taylor has been diagnosed with these impairments, the mere diagnosis or treatment of an impairment does not make it "severe." See, e.g., Martinez v. Astrue, No. 4:10-CV-883-Y, 2011 WL 3930219, at *8 (N.D. Tex. Aug. 18, 2011) ("[T]he mere diagnosis of a mental impairment such as depression says nothing about the severity of the condition.'") (quoting Parra v. Astrue, No. 4:07-CV-443-Y, 2009 WL 49999, at *5 (N.D. Tex. Dec. 3, 2008)). Contrary to Taylor's claims, there is nothing in these records that indicates Taylor's alleged impairments of manic depression, high cholesterol, or obstetric arthritis disease were in any way interfering with Taylor's ability to work. Consequently, there is no evidence that the ALJ erred at Step Two, and remand is not required.
It is recommended that the Commissioner's decision be affirmed.
Under 28 U.S.C. § 636, it is hereby
It is further
20 C.F.R. § 416.967(b).
After the ALJ rates the degree of functional limitation resulting from any mental impairment, the ALJ determines the severity of such impairment. 20 C.F.R. § 404.1520a(d). If the degree of functional loss falls below a specified level in each of the four areas, the ALJ must find the impairment is not severe at Step Two of the sequential evaluation process, which generally concludes the analysis and terminates the proceedings. 20 C.F.R. § 404.1520a(d)(1). If the ALJ finds that the mental impairment is severe at Step Two, then the ALJ must determine at Step Three if it meets or equals a listed mental disorder of the Listing. 20 C.F.R. § 404.1520a(d)(2). To determine if it meets or is equivalent in severity to a listed mental disorder, the ALJ must compare the medical findings about the claimant's impairment and the rating of the degree of functional limitation to the criteria of the appropriate listed mental disorder. 20 C.F.R. § 404.1520a(d)(2). If the impairment is severe but does not meet or equal a listed mental impairment, then the ALJ must conduct an RFC assessment. 20 C.F.R. § 404.1520a(d)(3); see Boyd, 239 F.3d at 705.
