Herring v. Astrue

788 F. Supp. 2d 513, 2011 U.S. Dist. LEXIS 43688, 2011 WL 1532155
District Court, N.D. Texas·Decided April 22, 2011·No. Civil Action 4:10-CV-583-D·Published

Opinion

MEMORANDUM OPINION

SIDNEY A. FITZWATER, Chief Judge.

Plaintiff Alma Michelle Herring (“Herring”) brings this action under § 205(g) of the Social Security Act (the “Act”), 42 U.S.C. § 405(g), for judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her claim for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) payments under titles II and XVI of the Act. For the reasons that follow, the Commissioner’s decision is affirmed.

I

Herring filed applications for DIB and SSI benefits, alleging that she had been disabled since January 26, 2008 due to diabetes, chronic obstructive pulmonary disease (“COPD”), asthma, and depression/bipolar disorder. Her applications were denied initially and on reconsideration. Herring requested a hearing before an administrative law judge (“ALJ”). At the time of the hearing, Herring was 40 years old and had a ninth grade education.

Following a hearing, the ALJ determined that Herring was not disabled during the adjudicative period of January 26, 2008 through March 30, 2009 and not eligible for DIB or SSI payments. Applying the five-step sequential process, the ALJ found at step one that Herring had not engaged in substantial gainful activity since her alleged onset date of January 26, 2008, having lost her previous job after an argument with her boss. He found at step two that Herring had the following severe impairments: asthma, affective mood disorder, bipolar disorder, obesity, and COPD, but not by diabetes. The ALJ determined at step three that Herring did not have a medically determinable impairment or combination of impairments that met or equaled any listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1, even when considering the combined impact of her respiratory, cardiovascular, and mental impairments. The ALJ concluded at step four that Herring is unable to *515 perform any of her past relevant work as an informal waitress, a hand packager, or a convenience store checker. At step five, the ALJ concluded on the basis of Herring’s residual functional capacity (“RFC”), age, education, and work experience that she can perform other relevant work that exists in significant numbers in the national economy: cashier II, injection molding machine tender, and small products assembler II. The ALJ therefore concluded that Herring was not disabled within the meaning of the Act at any time through the date of his decision. Herring’s request for review of the ALJ’s decision was denied by the Appeals Council, and the ALJ’s decision became the final decision of the Commissioner.

Herring now seeks judicial review on the following two grounds: first, that the ALJ’s decision that Herring can perform jobs is based on a defective hypothetical question to the vocational expert (“VE”) because it did not include her impairment in social functioning; and, second, that the ALJ failed to adequately evaluate the opinions of the medical experts (“MEs”) who concluded that Herring has a severe personality disorder and impairment in social functioning.

II

The court’s review of the Commissioner’s decision is limited to determining whether substantial evidence supports the decision and whether the Commissioner applied the proper legal standards to evaluate the evidence. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir.1995); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir.1995) (per curiam). “The Commissioner’s decision is granted great deference and will not be disturbed unless the reviewing court cannot find substantial evidence in the record to support the Commissioner’s decision or finds that the Commissioner made an error of law.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir.1995) (footnotes omitted).

“The court may not reweigh the evidence or try the issues de novo or substitute its judgment for that of the [Commissioner].” Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir.1984) (citations omitted). “If the Commissioner’s findings are supported by substantial evidence, then the findings are conclusive and the Commissioner’s decision must be affirmed.” Martinez, 64 F.3d at 173. “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.1994) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). “It is more than a mere scintilla, and less than a preponderance.” Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir.1993) (citing Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir. 1990) (per curiam)). “To make a finding of ‘no substantial evidence,’ [the court] must conclude there is a ‘conspicuous absence of credible choices’ or ‘no contrary medical evidence.’ ” Dellolio v. Heckler, 705 F.2d 123, 125 (5th Cir.1983) (citation omitted). 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 Carry v. Heckler, 750 F.2d 479, 482 (5th Cir.1985). The resolution of conflicting evidence is for the Commissioner rather than for the court. See Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir.1983) (per curiam).

Free access — add to your briefcase to read the full text and ask questions with AI

Herring v. Astrue, 788 F. Supp. 2d 513, 2011 U.S. Dist. LEXIS 43688, 2011 WL 1532155 (N.D. Tex. 2011).

788 F. Supp. 2d 513 (Herring v. Astrue) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Boyd v. Apfel
239 F.3d 698 (Fifth Circuit, 2001)
Chambliss v. Massanari
269 F.3d 520 (Fifth Circuit, 2001)
Cantrell v. McMahon
227 F. App'x 321 (Fifth Circuit, 2007)
Richardson v. Perales
402 U.S. 389 (Supreme Court, 1971)
Smith v. Chater
962 F. Supp. 980 (N.D. Texas, 1997)