Opinion
Civil Action No. SA-04-CA-0146 OG (NN).
February 23, 2005
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: Hon. Judge Orlando Garcia United States District Judge
I. Introduction
Plaintiff Yolanda Luna seeks review and reversal of the partial administrative denial of her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") by the Administrative Law Judge ("ALJ") on April 9, 2003. Plaintiff contends that ALJ Blucher's conclusion that plaintiff was not disabled on or before December 31, 1999, and, therefore, was not eligible for Disability Insurance Benefits was not supported by the substantial evidence of the record nor was it made in accordance with the correct legal standards. For this reason, plaintiff requests that the court reverse, remand and order the entry of a finding of disability, or, in the alternative, remand the case for proper development.After considering plaintiff's brief in support of her complaint, defendant's brief in support of the Commissioner's decision, plaintiff's reply brief, the transcript of the Social Security Administration (hereinafter "SSA") proceedings, the pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, and the entire record in this matter, it is my recommendation that plaintiff's request for relief be DENIED.
Docket Entry 9.
Docket Entry 12.
Docket Entry 13.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
II. Jurisdiction
The court has jurisdiction under 42 U.S.C. §§ 405(g), 1383.
III. Administrative Proceedings
According to the record in this case, plaintiff fully exhausted her administrative remedies prior to filing this action in federal court. In fact, this case has a rather extensive procedural history. Plaintiff filed the applications for DIB and SSI at issue on March 17, 1999, alleging a disability beginning August 19, 1994. The SSA denied plaintiff's application both initially, on July 6, 1999, and on reconsideration, September 24, 1999.
Transcript, at 170-175; Docket Entry 9, at 1.
Transcript, at 44-50.
Transcript, at 53-55.
The first administrative hearing was held before ALJ Blucher on April 4, 2000. After the hearing, ALJ Blucher issued his partially favorable decision in which he concluded that plaintiff was disabled beginning April 15, 2000, when she turned 55 years of age. Because plaintiff failed to establish disability before April 2000 and was only insured through December 31, 1999, ALJ Blucher held that plaintiff was entitled to SSI but not DIB.
Transcript, at 104-153.
Transcript, at 89.
Transcript, ¶¶ 10-12, at 88-89.
After plaintiff requested review of the hearing and decision, the Appeals Council issued an order on April 29, 2002. In its order, the Appeals Council affirmed the portion of the decision which found that plaintiff was disabled beginning April 15, 2000. However, the Council vacated the decision as to plaintiff's alleged disability prior to April 15, 2000. The Appeals Council reminded the ALJ that age categories should not be applied mechanically in a borderline situation. The Council further directed the ALJ, for the pertinent period, to:
Transcript, at 155-157.
Transcript, at 156.
Transcript, at 156.
• Assess the claimant's specific residual functional capacity consistent with the evidence of record and provide specific rationale for all work related limitations to include mental limitations that existed prior to obtaining age 55; ( sic)
• Give consideration to the treating and examining source opinions in the record, pursuant to the provisions of 20 C.F.R. § 404.1527 and SSRs 96-2p and 96-5p, and the non examining ( sic) source opinions pursuant to the provisions of 20 C.F.R. § 404.1527(f) and SSR 96-6p, and explain the weight given to such opinion evidence. The ALJ will request the treating and examining sources to provide additional evidence and/or further clarification of the opinions and medical source statements about what the claimant can still do despite the impairments, especially regarding mental limitations prior to age 55 ( 20 C.F.R. § 404.1512).
• As appropriate, obtain additional evidence from a vocational expert (VE) to clarify the effect of the assessed limitations on the claimant's remaining occupational base. The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The ALJ will ask the VE to identify if the remaining ability to work is consistent with the requirements of past relevant work, either as performed or usually performed in the economy, or other jobs and to state the incidence of such jobs in the national economy ( 20 C.F.R. § 404.1566). Further, before relying on the VE evidence, the ALJ will identify and resolve any conflicts between the occupational evidence provided by the VE and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (SSR 00-4p).
• Evaluate the claimant's subjective complaints and provide specific rationale in accordance with the disability regulations pertaining to evaluation of symptoms to include full consideration of third party opinions as given by examining and treating sources and/or third parties as a basis for the complaints found not supported by the objective record.
ALJ Alvaro Garza held a supplemental hearing on December 4, 2002. At that hearing, plaintiff was represented by counsel. Plaintiff's attorney had the opportunity to examine and question fully plaintiff, medical expert Dr. Harold Cooper, and vocational expert Barry Brown.
Transcript, at 627-654. Although ALJ Blucher authored both administrative hearing decisions in this case and presided over the first administrative hearing, the record shows that ALJ Garza presided over the second administrative hearing. Id.
At the supplemental hearing, plaintiff testified that she had a ninth grade education. She told ALJ Garza that she hurt her back in an on-the-job injury on August 19, 1994. Plaintiff told the ALJ that her back impairments were her main problem. Plaintiff testified that she took Vicodin for her back pain. Plaintiff also stated that she stopped going to psychological counseling because she did not have a car. Plaintiff further told the ALJ that she had taken Amitriptyline for her depression in the past. However, plaintiff stopped taking the medicine, despite its beneficial effects, approximately one year before the hearing because she did not have a vehicle and would not ask her children to take her to pick up the medicine. In summarizing the nature of her disability, plaintiff told the ALJ: "I just know I can't work, my back hurts, and I lose concentration."
Transcript, at 630.
Transcript, at 630, 631.
Transcript, at 631.
Transcript, at 640.
Transcript, at 642.
Transcript, at 650-651.
Transcript, at 643.
The ALJ also heard testimony from medical expert Dr. Harold Cooper at the administrative hearing. Dr. Cooper testified that the medical evidence of record did not contain a lot of information on plaintiff's back impairments and that the MRIs of plaintiff's back were essentially normal. Dr. Cooper opined that plaintiff was capable of lifting twenty pounds occasionally and ten pounds frequently. Dr. Cooper further testified that plaintiff had unlimited push/pull, with no manipulative limitations and the ability for occasional stooping, kneeling, crawling or climbing. Although he acknowledged plaintiff's diagnosis of a major depressive condition, Dr. Cooper testified that fragmented concentration does not necessarily preclude all work activities.
Transcript, at 632-638.
Transcript, at 633.
Transcript, at 637.
Transcript, at 637.
Transcript, at 633, 638.
At the supplemental hearing, the ALJ also heard the testimony of vocational expert Barry Brown. Mr. Brown testified that the only past work plaintiff performed that could be considered substantial gainful activity was her work as a cafeteria worker which was medium, semi-skilled. Mr. Brown testified that plaintiff would not be able to perform any of her past relevant work, but that she could perform work as a cashier, a food preparation worker, a cafeteria worker, or a light laundry worker. Upon questioning by plaintiff's counsel, however, Mr. Brown testified that an individual with fragmented concentration would likely have difficulty either obtaining or maintaining employment.
Transcript, at 644-650.
Transcript, at 645.
Transcript, at 645.
Transcript, at 646-647.
Transcript, at 648-649.
Transcript, at 648, 650.
On April 9, 2003, ALJ Blucher issued his post-remand decision in which he concluded that plaintiff "became disabled within the meaning of the Social Security Act beginning on April 15, 2000, but not prior thereto."
Transcript, at 15.
After receiving the ALJ's unfavorable decision dated April 9, 2003, plaintiff requested review of the hearing and decision on May 22, 2003. On December 22, 2003, the Appeals Council concluded that there was no basis upon which it could grant plaintiff's request for review, thereby denying plaintiff's request. Plaintiff commenced the instant action in this court on February 17, 2004.
Transcript, at 10.
Transcript, at 6-8.
Docket Entry 1.
IV. Issue Presented
Whether the ALJ's decision is supported by substantial evidence and comports with relevant legal standards?V. Analysis
A. Standard of Review
In reviewing the Commissioner's decision denying disability insurance benefits, I am limited to a determination of whether substantial evidence supports the decision and whether the Commissioner applied the proper legal standards in evaluating the evidence. "Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Substantial evidence "must do more than create 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.'"
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); 42 U.S.C. §§ 405(g), 1383(c)(3) (2002).
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (quoting Hames, 707 F.2d at 164).
If the Commissioner's findings are supported by substantial evidence, then they are conclusive and must be affirmed. In my review of the Commissioner's findings, I must carefully examine the entire record, but refrain from re-weighing the evidence or substituting my judgment for that of the Commissioner. Conflicts in the evidence and credibility assessments are for the Commissioner and not for the courts to resolve. Four elements of proof are weighed by the courts in determining if substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience.
Martinez, 64 F.3d at 173.
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Villa, 895 F.2d at 1021 ("The court is not to reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner.").
Martinez, 64 F.3d at 174.
Id.
1. Entitlement to Benefits
Every individual who is insured for disability insurance benefits, has not reached retirement age, has filed an application for benefits, and is under a disability is entitled to receive disability insurance benefits. The term "disabled" or "disability" means 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 twelve months." A claimant shall be determined to be disabled only if his physical or mental impairment or impairments are so severe that he is unable to not only do his previous work, but cannot, considering his age, education, and work experience, participate in any other kind of substantial gainful work which exists in significant numbers in the national economy, regardless of whether such work exists in the area in which he lives, whether a specific job vacancy exists, or whether he would be hired if he applied for work.
Id. § 1382c(a)(3)(A).
Id. § 1382c(a)(3)(B).
2. Evaluation Process and Burden of Proof
Regulations set forth by the Commissioner prescribe that disability claims are to be evaluated according to a five-step process. A finding that a claimant is disabled or not disabled at any point in the process is conclusive and terminates the Commissioner's analysis.
20 C.F.R. §§ 404.1520 and 416.920 (2002).
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The first step involves determining whether the claimant is currently engaged in substantial gainful activity. If so, the claimant will be found not disabled regardless of his medical condition or his age, education, or work experience. The second step involves determining whether the claimant's impairment is severe. If it is not severe, the claimant is deemed not disabled. In the third step, the Commissioner compares the severe impairment with those on a list of specific impairments. If it meets or equals a listed impairment, the claimant is deemed disabled without considering his age, education, or work experience. If the impairment is not on the list, the Commissioner, in the fourth step, reviews the claimant's RFC and the demands of his past work. If he is still able to do his past work, he is not disabled. If he cannot perform his past work, the Commissioner moves to the fifth and final step of evaluating the claimant's ability, given his residual capacities, age, education, and work experience, to do other work. If he cannot do other work, he will be found disabled. The claimant bears the burden of proof at the first four steps of the sequential analysis. Once he has shown that he is unable to perform his previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that the claimant is not only physically able to perform, but also, taking into account his exertional and non-exertional limitations, able to maintain for a significant period of time. If the Commissioner adequately points to potential alternative employment, the burden shifts back to the claimant to prove that he is unable to perform the alternative work.
20 C.F.R. §§ 404.1520 and 416.920.
Id.
Id.
Id.
20 C.F.R. §§ 404.1520 and 416.920.
Id.
Id.
Id.
Id.
Leggett, 67 F.3d at 564.
Watson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002).
Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989).
In the instant case, the issue before the court is whether ALJ Blucher properly concluded that plaintiff was only disabled on and after April 15, 2000, slightly more than four months after plaintiff's insured status expired. At step one of the sequential evaluation process, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date of her disability. ALJ Blucher then concluded at steps two and three that plaintiff had an impairment or combination of impairments (lumbar degenerative disc disease and depression) which were severe, but did not meet or medically equal a listed impairment as of the date the plaintiff was last insured. At step four, the ALJ found that, although she was unable to return to her past relevant work, plaintiff retained the residual functional capacity to "perform light exertional work with occasional bending and stooping, no high stress, modest contact with others and simpler, but not necessarily the simplest jobs."
Transcript, at 15.
Transcript, at 15.
Transcript, at 17.
Transcript, at 19.
At step five, the ALJ held that given plaintiff's age (defined as a "closely approaching advanced age"), education (a limited education), and vocational experience (no transferable skills from previous work), plaintiff
was capable of making a successful adjustment to work that exists in significant numbers in the national economy prior to April 15, 2000. Therefore, within the framework of Rule 202.10 of the medical vocational guidelines, she was not disabled.
However, with the claimant's attainment of age 55 on April 15, 2000, her vocational profile corresponds to rule applicable ( sic) to persons closely approaching advanced age. Accordingly, on April 15, 2000, based on an exertional capacity for light work as determined and with consideration of the claimant's age, education, and work experience, Rule 202.01 of the Medical Vocational Guidelines ( sic) directs a conclusion that she is disabled. (This finding from the previous decision was upheld by the Appeals Council.)
Transcript, at 20.
Based on the foregoing, ALJ Blucher concluded that plaintiff was entitled to SSI but not DIB. B. Is the ALJ's April 2003 Decision Supported by Substantial Evidence?
Transcript, at 20, 22-24.
Plaintiff challenges the ALJ's second administrative decision, asserting that the ALJ: (1) failed to comply with the Appeals Council's remand order, particularly with respect to its direction that the ALJ re-assess plaintiff's non-exertional impairments; and (2) erroneously applied the guidelines in a mechanical fashion in violation of the Appeals Council's remand order and Social Security Ruling 83-10. Plaintiff argues that these mistakes constitute reversible error and that substantial evidence does not support the ALJ's decision. In my opinion, plaintiff's alleged grounds for reversal are not meritorious. For that reason, I recommend that plaintiff's request for relief be DENIED.
Docket Entries 9, 13.
1. Did the ALJ fail to comply with the Appeals Council's remand order regarding assessment of plaintiff's non-exertional impairments?
In her first point of error, plaintiff argues that the ALJ failed to comply with the Appeals Council's remand order because he failed to reconsider the medical evidence of record related to plaintiff's mental impairments. In so doing, plaintiff further asserts that the ALJ erroneously concluded that plaintiff's mental impairments were not disabling. Plaintiff specifically directs the court to the reports of Dr. Richmond, Janice Rouse, the State Agency Medical Consultants (SAMC) and the medical experts, as well as the ALJ's analysis of the same. Plaintiff argues that the ALJ improperly rejected the opinions of Dr. Richmond on the basis that they were based on plaintiff's own subjective complaints and improperly disregarded the opinions of Janice Rouse and the SAMCs. In sum, plaintiff asserts that the ALJ's assessment of the medical evidence of record in the second decision was virtually identical to that contained in the first decision, revealing the ALJ's failure to comply with the remand order.
See Docket Entries 9, 13.
Plaintiff's arguments are unavailing. Although the ALJ incorporated certain portions of his first decision in the supplemental decision, the ALJ devoted much of the supplemental decision to thoroughly analyzing the medical evidence of record related to plaintiff's mental impairments as well as plaintiff's complaints of disabling non-exertional limitations as compared to her own account of her daily activities. For example, the ALJ noted Dr. Richmond's report from June 1999. Contrary to plaintiff's account in her pleadings, the ALJ did not reject Dr. Richmond's ultimate conclusions solely because they were based on plaintiff's own self-account but also because they were contradicted by the other evidence of record, including plaintiff's own testimony at the administrative hearings.
See Transcript, at 16-19.
Transcript, at 16. See also Transcript, at 300-304.
Transcript, at 16, "the assessment was based on the claimant's own subjective reports which are unsupported or contradicted . . . She also described having no friends, not attending church, and not grocery shopping; which is contrary to her testimony (emphasis added)."
Plaintiff further argues that the ALJ erroneously disregarded the opinions in Janice Rouse's letter of June 1999. Plaintiff is referring to a "To Whom It May Concern" letter authored by her therapist, Janice Rouse, on June 18, 1999. In the letter, Ms. Rouse recounted plaintiff's complaints of depression and anxiety, crying spells, headaches, decreased interest in activities, stress, trouble sleeping, worrying and suicidal ideation. Notably, Ms. Rouse related that plaintiff "stated she was unable to work," but neither confirmed nor denied this conclusion. Rather, Ms. Rouse merely stated that plaintiff "continues to feel depressed with suicidal ideation, anxious, and is having difficulty coping with stress." Although ALJ Blucher did not discuss this letter — which was clearly written to assist plaintiff obtain assistance of some kind, whether it be SSI, DIB, or some other form of support — ALJ Blucher did acknowledge a treatment record by Ms. Rouse:
subsequent treatment records from the Centro Del Barrio Mental Health Clinic note that by July 30, 1999, the claimant had responded to treatment and indicated that she was less depressed (Ex. B2F97).
See Transcript, at 244.
Id.
Transcript, at 16, citing Transcript, at 243.
It was proper for the ALJ to recognize a treatment report over a letter written to assist plaintiff obtain benefits.
See, generally 20 C.F.R. § 404.1502:
We will not consider an acceptable medical source to be your treating source if your relationship with the source is not based on your medical need for treatment or evaluation, but solely on your need to obtain a report in support of your claim for disability. In such a case, we will consider the acceptable medical source to be a nontreating source.See also Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985), citing Whitney v. Schweiker, 695 F.2d 784, 789 (7th Cir. 1982) (holding that an ALJ may properly reject the treating source opinion when it appears the treating physician is "`leaning over backwards to support the application for disability benefits.'")
Moreover, the ALJ continued his discussion of the medical and non-medical evidence of record related to plaintiff's depression. The ALJ wrote:
In addition, the treatment records continuing through April 15, 2000 do not indicate that any medical provider considered mental depression to be a severe psychiatric condition (Ex. B2F131-136). According to the records, the medical expert at the April 4, 2000 hearing indicated that the claimant's depression was improving (see Exhibit B1F/97).
The evidence indicates sporadic treatment for intermittent symptoms of depression, but no evidence that mental depression is considered by any treatment provider to be a debilitating impairment (Ex. B1F/12, 14, 41). Evaluated under the `B' criteria [functional limitations] of listing 12.04 [affective disorders], mental depression causes mild restrictions in activities of daily living, moderate limitations in social functioning, moderate difficulties in maintaining concentration, persistence, or pace, and there is one episode of decompensation for an extended period evidence in the record. The findings of moderate concentration and social limitations may be excessive. (claimant ( sic) had good memory and concentration at both hearings (Claimant ( sic) said her memory was worse now than three years ago — meaning at the date last insured claimant's memory/concentration was even better). Note claimant at the previous hearing testified that she took her medicines everyday (Exhibit 12B7) and `sometimes' helped her grandchildren with their homework (Exhibit 12B/13), both of which evidence some concentration. It is also noteworthy claimant testified the reason she cannot work is because of her back problems, Exhibit B12B(16,17).
Transcript, at 16-17.
Later in the decision, the ALJ returned to his assessment of plaintiff's non-exertional impairments, including a review of plaintiff's daily activities, the opinions of the consultative psychiatric examiner, and the SAMCs. ALJ Blucher wrote:
Furthermore, the claimant's complaints and reported limitations are not consistent with her daily activities. Prior to April 15, 2000, the claimant lived with her grown daughter and her grandchildren, ages 7 and 10, and reported the following: Her daughter works Monday through Friday. The claimant looks after her grandchildren when they get home from school. She makes sure their homework is done. She also cooks, cleans, washes dishes, and does the laundry. She listens to the radio, watches some television, visits with another daughter daily who lives next door, gardens using pot plants, and walks several blocks to her friend's home. She walks around the yard for exercise. Her daughter drives her to the grocery store and to church because she does not drive. She does not need another person's help in riding the bus (Exhibits B4E/4, B4E/5, B1F/14; and claimant's testimony). The claimant's subjective complaints and reported limitations are found credible only to the extent they are compatible with the residual functional capacity determined by the Administrative Law Judge.
The Administrative Law Judge gives very little weight to the conclusions of the consulting psychiatric examiner (Exhibits B1F/38 39), because they are based on the claimant's subjective statements which are unsupported or inconsistent with the other substantial evidence of record, including her own testimony. Appearance, attitude and behavior were normal, insight was present, claimant was oriented, intelligence was average, and claimant did fairly well on the concentration tests. Global Assessment of Functioning was 50. Also see Exhibit B1F97 (feeling less depressed), Exhibit B1F14 (no obvious depression) and Exhibit B1F12/(same examination; no physical or emotional lability); Dr. Gorman, the medical expert, is a nonexamining medical source because he did not examine or treat the claimant. Nevertheless, he provided specific reasons for his opinions supported by evidence in the record or lack thereof. Therefore, the Administrative Law Judge gives the opinions of the medical expert significant weight.
The Administrative Law Judge also considered the opinions of the State agency medical and psychological consultants. They concluded that the claimant had no physical limitations and that a `severe,' yet non-disabling mental impairment was present (Exhibits B1F/98-118). The medical evidence, including evidence submitted after the assessments of the State agency consultants, and the credible medical expert testimony demonstrate that the claimant has physical limitations from degenerative lumbar disc disease, and a `severe' but not disabling mental impairment.
Transcript, at 18-19.
Thus, the ALJ did not merely reiterate his analysis from the previous decision. Rather, he assessed all the relevant medical evidence of record in compliance with the Appeals Council's remand order. Plaintiff has failed to prove that the ALJ's decision is not supported by the substantial evidence of the record and has, therefore, failed to establish reversible error. For these reasons, I find plaintiff's first point of error unavailing.
2. Did the ALJ improperly apply the guidelines in a mechanical fashion in violation of the Appeals Council's remand order and Social Security Ruling 83-10?
In her second, and final, point of error, plaintiff argues that ALJ Blucher improperly interpreted Social Security Ruling 83-10. Specifically, plaintiff asserts:
The ALJ was ordered to follow this regulation and consider whether the plaintiff's limitations existed prior to obtaining age 55 . . .
In the subsequent partially favorable decision, the ALJ rejects the AC's assertion that this is a borderline case where age should not have been mechanically applied to deny benefits. The ALJ reasons that the idea does not apply to Title II cases where the date last insured is outside of the age category. In his decision he quotes 83-10 . . .
However, the ALJ misinterprets the ruling. The ruling simply points out that the date of the hearing is not relevant to the determination of disability in a Title II case, rather the date last insured is the relevant point of reference. The AC has directed the ALJ to consider disability on the date last insured, which they point out is within a few months of her birthday. The ALJ is allowed to consider that the plaintiff was disabled a few months prior to her birthday and failed to properly do so.
Docket Entry 9, at 10 (internal citations omitted).
Social Security Ruling 83-10 was written to "clarify the manner in which the medical-vocational rules in Appendix 2 of Subpart P, Regulations No. 4, address the issue of capability to do other work, and to provide definitions of terms and concepts frequently used in evaluating disability under the medical-vocational rules." SSR 83-10 addresses the vocational factors of age, education and work experience which determine, at least in part, whether a plaintiff is capable of performing a particular "exertional range of work." In addressing the effects of age on an individual's capacity to perform work related activities, SSR 83-10 notes "that older age is an increasingly adverse vocational factor for persons with severe impairments." The Ruling continues:
The chronological ages 45, 50, 55 and 60 may be critical to a decision. However, the regulations also provide that age categories are not applied mechanically in borderline situations. For example, a rule for an individual of advanced age (55 or older) could be found applicable, in some circumstances, to an individual whose chronological age is 54 years and 11 months (closely approaching advanced age). No fixed guidelines as to when a borderline situation exists are provided since such guidelines would themselves reflect a mechanical approach. Under title II, a period of disability cannot begin after a worker's disability insured status has expired. When the person last met the insured status requirement before the date of adjudication, the oldest age to be considered is the person's age at the date last insured. In these situations, the person's age at the time of decisionmaking is immaterial.
Titles II and XVI: Determining Capability to Do Other Work — the Medical-Vocational Rules of Appendix 2, SSR 83-10, at * 1.
Id. , at * 8.
Id.
Id.
In the instant case, ALJ Blucher devoted nearly two pages of the second administrative decision to discussing SSR 83-10 and its application to this case. In concluding that plaintiff was not entitled to DIB because her disability began after the expiration of her insurance coverage, the ALJ stated that he fully considered 20 C.F.R. § 404.1563(a)-(b) and SSR 83-10. The ALJ explained the definition of a borderline situation, acknowledged the regulatory admonition that age categories not be applied mechanically, and cited the pertinent portions of SSR 83-10 — the very same paragraphs from SSR 83-10 cited above.
Transcript, at, 20.
Transcript, at 21:
A `borderline' situation exists when a claimant's age is close to two age categories of the medical vocational guidelines the younger age directing a finding of not disabled and the older directing a finding of disabled.
Transcript, at 21.
ALJ Blucher then wrote:
The Appeals Council remand (Exhibit B14B/2) suggests that the situation applicable here is covered by the first of these two above paragraphs. It is not. The first paragraph concerns a circumstance where the limitation of date last insured (DLI) is not applicable, either because the claim is for Supplemental Security Income Benefits (which has no DLI) the DLI ( sic) is so far into the future that it does not impact the issue. In such a case, a claimant may not be given the benefit of the next age category if the claimant is close enough to it in terms of age. In such circumstances, the DLI is not adjusted. (In such a case, claimant could merely reapply a few months later and, with the same DLI, and residual functional capacity be awarded benefits).
This appeal however is covered by the second paragraph. The DLI is March 31, 1999. Claimant was found disabled (both in this and the prior decision) on April 15, 2000, after the DLI. The second paragraph clearly states the DLI shall not be changed, the oldest age to consider is the DLI age, and Title II disability cannot begin after the DLI as insurance coverage has expired at this point. This is adjusting the DLI, precisely what is requested here, and it is not permitted.
If this analysis is somehow wrong, the Administrative Law Judge nevertheless affirms that this case does not warrant borderline age discretionary treatment. There is credible vocational expert testimony to establish that there were a significant number of jobs in the national economy that the claimant could perform based on the residual functional capacity determined as a result of her impairments. The fact that the claimant became disabled on April 15, 2000 was due only to the fact that she attained age 55 and she benefited ( sic) from the medical vocational rule applicable to an older age category. Further, the fact that the claimant's Title II insurance coverage expired on December 31, 1999, over 100 days prior to her 55th birthday, should not in any way change the date disability is found or the denial of Title II benefits. This time period should not be considered a borderline case.
Transcript, at 21-22.
ALJ Blucher thoroughly discussed his reasons for declining to consider this case a borderline situation. Plaintiff has cited no legal authority which explicitly contradicts the ALJ's reading of SSR 83-10. Thus, plaintiff has failed to establish that the ALJ applied an incorrect legal standard, e.g. that the ALJ committed an error of law.
The inquiry, therefore, is whether substantial evidence supports the ALJ's holding that plaintiff's case was not a borderline one. The ALJ appropriately supported his conclusions regarding the applicability of SSR 83-10 to plaintiff's case. When the alleged defect in the decision centers around the substantiality of the evidence, the decision must be affirmed if it is supported by substantial evidence — even if the evidence preponderates against the ALJ's findings. Here, plaintiff has failed to prove that the ALJ's decision is not supported by the substantial evidence of the record. In fact, plaintiff has failed even to address the last paragraph of the ALJ's analysis — the portion of the decision explaining why the instant case does not warrant borderline status. Thus, I find plaintiff's second point of error unavailing and conclude that plaintiff has failed to establish prejudicial, i.e. reversible, error with respect to the same.
See Smith v. Chater, 962 F.SUPP. 980, 982 (N.D. Tex. 1997), "Even if the court should determine that the evidence preponderates in the claimant's favor, the court must still affirm the Commissioner's findings if there is substantial evidence to support these findings."
See Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000), "This Court will not reverse the decision of an ALJ for failure to fully and fairly develop the record unless the claimant shows that he or she was prejudiced by the ALJ's failure . . . To establish prejudice, a claimant must demonstrate that he or she `could and would have adduced evidence that might have altered the result (internal citations omitted).'"
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's request for relief be DENIED, her complaint (docket entry 1) DISMISSED and the Commissioner's decision AFFIRMED.VII. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According toTitle 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; 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 all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 149-152 (1985).
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).