FRANCES H. STACY, UNITED STATES MAGISTRATE JUDGE.
Before the Court
Plaintiff Aaron Ray Parrish ("Parrish") brings this action pursuant to Section 205(g) of the Social Security Act ("Act"), 42 U.S.C. § 405(g), seeking judicial review of an adverse final decision of the Commissioner of the Social Security Administration ("Commissioner") on his claim for disability insurance benefits. In one claim, Parrish argues that "Defendant failed to consider all of the evidence." Plaintiff's Motion for Summary Judgment (Document No. 12) at 1. The Commissioner, in contrast, argues that there is substantial evidence in the record to support the ALJ's decision, that the decision comports with applicable law, and that the decision should be affirmed.
On or about January 25, 2013, Parrish filed an application for disability insurance benefits ("DIB"), claiming that he had been unable to work since April 1, 2009, as a result of post-traumatic stress disorder, depression, and chronic leg and back pain (Tr. 203-205; 222). The Social Security Administration denied his application at the initial and reconsideration stages. After that, Parrish requested a hearing before an ALJ. The Social Security Administration granted his request and the ALJ, Robert N. Burdette, held a hearing on May 12, 2015, which was re-convened on July 16, 2015, at which Parrish's claims were considered de novo. (Tr. 29-46). Thereafter, on August 11, 2015, the ALJ issued his decision finding Parrish not disabled. (Tr. 10-25).
Parrish sought review of the ALJ's adverse decision with the Appeals Council.
Parrish filed a timely appeal of the ALJ's decision. 42 U.S.C. § 405(g). Both sides have filed a Motion for Summary Judgment, each of which has been fully briefed. The appeal is now ripe for ruling.
The court's review of a denial of disability benefits is limited "to determining (1) whether substantial evidence supports the Commissioner's decision, and (2) whether the Commissioner's decision comports with relevant legal standards." Jones v. Apfel, 174 F.3d 692, 693 (5th Cir. 1999). Indeed, Title 42, Section 405(g) limits judicial review of the Commissioner's decision: "The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." The Act specifically grants the district court the power to enter judgment, upon the pleadings and transcript, "affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing" when not supported by substantial evidence. 42 U.S.C. § 405(g). While it is incumbent upon the court to examine the record in its entirety to decide whether the decision is supportable, Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979), the court may not "reweigh the evidence in the record nor try the issues de novo, nor substitute [its] judgment for that of the [Commissioner] even if the evidence preponderates against the [Commissioner's] decision." Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988); Jones v. Apfel, 174 F.3d 692, 693 (5th Cir. 1999); Cook v. Heckler, 750 F.2d 391 (5th Cir. 1985). Conflicts in the evidence are for the Commissioner to resolve. Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992).
The United States Supreme Court has defined "substantial evidence," as used in the Act, to be "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 S.Ct. 126 (1938). Substantial evidence is "more than a scintilla and less than a preponderance." Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). The evidence must create more than "a suspicion of the existence of the fact to be established, but no `substantial evidence' will be found only where there is a `conspicuous absence of credible choices' or `no contrary medical evidence.'" Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983).
An individual claiming entitlement to disability insurance benefits under the Act has the burden of proving his disability. Johnson v. Bowen, 864 F.2d 340, 344 (5th Cir. 1988). The Act defines disability as the "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 has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The impairment
42 U.S.C. § 423(d)(2)(A). The mere presence of an impairment is not enough to establish that one is suffering from a disability. Rather, a claimant is disabled only if he is "incapable of engaging in any substantial gainful activity." Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992) (quoting Milam v. Bowen, 782 F.2d 1284, 1286 (5th Cir. 1986)).
The Commissioner applies a five-step sequential process to decide disability status:
Anthony, 954 F.2d at 293; see also Leggett v. Chater, 67 F.3d 558, 563 n.2 (5th Cir. 1995); Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). Under this framework, the claimant bears the burden of proof on the first four steps of the analysis to establish that a disability exists. If successful, the burden shifts to the Commissioner, at step five, to show that the claimant can perform other work. McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir. 1999). Once the Commissioner shows that other jobs are available, the burden shifts, again, to the claimant to rebut this finding. Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). If, at any step in the process, the Commissioner determines that the claimant is or is not disabled, the evaluation ends. Leggett, 67 F.3d at 563.
Here, the ALJ found at step one that Parrish had worked at the substantial gainful activity level after the alleged onset date of April 1, 2009. In particular, the ALJ determined that Parrish had exceeded the substantial gainful activity level in 2012 by earning $10,138.77, but that his earnings in 2013 "did not rise to the level of substantial gainful activity." (Tr. 12). At step two, the ALJ determined that Parrish had the following severe impairments: lumbar spine degenerative disc disease, major depressive disorder, post-traumatic stress disorder, attention deficit hyperactivity disorder, and personality disorder. (Tr. 12). At step three, the ALJ concluded that Parrish did not have an impairment or a combination of impairments that met or equaled a listed impairment, including Listings 1.04, 12.04, 12.06 and 12.08. (Tr. 13-15). Prior to consideration of steps four and five, the ALJ determined that Parrish
In this appeal, Parrish argues that the ALJ did not consider all the evidence, particularly that related to his limitations in three areas: activities of daily living, social functioning and concentration, persistence or pace. According to Parrish, "his impaired psychiatric status meets or equals Defendant's disability listing for Depression." Plaintiff's Motion for Summary Judgment (Document No. 12) at 29.
Parrish argues that the ALJ did not consider all of the evidence in the record, and then proceeds to enumerate the evidence not mentioned by the ALJ, which he claims would have supported a finding of disability. While agreeing with the Commissioner that the ALJ is not required to discuss each and every piece of evidence in the record, see Castillo v. Barnhart, 151 Fed.Appx. 334, 335 (5th Cir. 2005) ("That the ALJ did not specifically cite each and every piece of medical evidence considered does not establish an actual failure to consider the evidence."), much of evidence identified by Parrish reveals an infirmity in the ALJ's decision at step three as it relates to Parrish's mental impairment(s).
In determining that Parrish did not meet Listings 12.04, 12.06 and 12.08, for affective disorders, anxiety disorders, and personality disorders, the ALJ determined that Parrish had only moderate difficulties in maintaining social functioning and moderate difficulties in maintaining concentration, persistence or pace. The entirety of the ALJ's consideration of Listing 12.04, 12.06 and 12.08 is as follows:
(Tr. 14-15). Although the ALJ did, later on in his RFC determination, detail the evidence in the record that supported the mental limitations he found ("can perform detailed but not complex tasks. He is limited to frequent interaction with the general public and coworkers), the ALJ gave short shift to the evidence in the record in his determination that Parrish had moderate, but not marked, difficulties in maintaining both social functioning and concentration, persistence or pace.
The ALJ's step three analysis is problematic for two reasons: (1) it cannot be ascertained what evidence, other than which was mentioned, the ALJ considered in determining that Parrish had moderate, but not marked, difficulties maintaining social functioning and/or concentration, persistence or pace; and (2) it cannot be determined whether the ALJ considered the entire "adjudicative period" when he determined that Parrish had moderate, but not marked, difficulties maintaining social functioning and/or concentration, persistence or pace.
Upon this record, it cannot be determined whether the ALJ considered all the relevant evidence at step three in determining that Parrish did not meet Listing 12.04, 12.06 or 12.08. The record is over 1500 pages, and includes substantial records of mental health treatment Parrish received at the VA in Omaha, Las Vegas and Houston. The record also contains the VA service connection disability rating of 90% — 50% of which is attributable to Parrish's depression (Tr. 320), documentation of the numerous mental health medications Parrish has taken over the years, including Paxil, Effexor, Quetiapine (Seroquel), Cymbalta and Zoloft, and GAF scores
Because the record does not establish that the ALJ considered all the of relevant evidence at step three and because it cannot be said that "substantial evidence" supports that step three finding given the ALJ's stated bases therefor, remand is warranted.
Based on the foregoing, and the absence of substantial evidence to support the ALJ's determination at step three as Parrish's mental impairment(s), it is
ORDERED that Plaintiff's Motion for Summary Judgment (Document No. 12) is GRANTED, Defendant's Motion for Summary Judgment (Document No. 10 is DENIED, and this case is REMANDED to the Social Security Administration pursuant to 42 U.S.C. § 405g, for further proceedings consistent with this opinion.