Sheldrick DeJohnette v. Carolyn Colvin, Acting Cmsnr

Filing

UNPUBLISHED OPINION FILED. [16-30923 Affirmed] Judge: EHJ, Judge: JLW, Judge: EBC. Mandate pull date is 05/01/2017 [16-30923]

Case: 16-30923

Document: 00513903277

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Date Filed: 03/08/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-30923
Summary Calendar
SHELDRICK DEJOHNETTE,

United States Court of Appeals
Fifth Circuit

FILED
March 8, 2017
Lyle W. Cayce
Clerk

Plaintiff - Appellant
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:15-CV-505
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
Sheldrick DeJohnette applied for Social Security Disability Insurance
(“SSDI”) benefits and was denied. An Administrative Law Judge (“ALJ”)
reviewed DeJohnette’s application and concluded that, because DeJohnette
was capable of working with certain restrictions, he was not entitled to SSDI
benefits. The district court concluded there was substantial record evidence
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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supporting the ALJ’s factual determinations, and affirmed the ALJ’s ruling.
DeJohnette appeals. We affirm.
I
DeJohnette applied for SSDI benefits, alleging disability because of
schizophrenia psychosis, post-traumatic stress disorder, major depression,
high blood pressure, migraines, anxiety/panic attacks, and insomnia. After his
claim was initially denied by the state agency, DeJohnette requested and
received a hearing before the ALJ. The ALJ applied the five-step sequential
evaluation process established by the Social Security Administration (“SSA”)
to determine whether an individual is disabled for purposes of SSDI benefits.
See 20 C.F.R. § 404.1520(a). At step four, the ALJ determined that DeJohnette,
despite his various ailments, could continue to perform his past work as a
paper mill laborer. The ALJ therefore determined that DeJohnette did not
qualify for SSDI benefits.
DeJohnette sought to appeal the ALJ’s decision to the SSA’s Appeals
Council. The Appeals Council declined DeJohnette’s request for review,
concluding there was “no reason under [SSA] rules to review the [ALJ’s]
decision.” DeJohnette then went to federal district court. The district court
affirmed the ALJ’s ruling.
II
“In an appeal from an ALJ’s denial of [SSDI] benefits, we review the
ALJ’s decision alone to determine whether [it] applied the proper legal
standard and, if so, whether substantial evidence supports [its] decision.”
Randall v. Astrue, 570 F.3d 651, 655 (5th Cir. 2009).
III
DeJohnette makes three arguments as to why the ALJ’s determination
was not supported by substantial evidence. He contends that the ALJ: (1)
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wrongly rejected the assessment of Dr. Agarwal, DeJohnette’s treating
psychiatrist; (2) made a mistaken credibility determination because it did not
properly take into account the ways in which DeJohnette’s mental
impairments prevented him from complying with prescribed treatment; and
(3) mistakenly relied on the testimony of a Vocational Expert (“VE”) to the
effect that DeJohnette could competently work as a paper mill laborer. None
of these arguments is availing. We address each in turn.
A.

Dr. Agarwal

After treating DeJohnette in 2012, Dr. Rita Agarwal filled out a form and
checked a box indicating that DeJohnette “face[d] a substantial possibility of
deterioration in mental or physical condition or functioning if either home and
community-based services or nursing facility services [were] not provided in
less than 120 days.” The form then instructed the physician to “[p]lease provide
a brief statement supporting your response.” Dr. Agarwal failed to provide any
such statement. Because Dr. Agarwal failed to provide any explanation
supporting her conclusions, the ALJ accorded Dr. Agarwal’s opinion “little
weight.” 1
DeJohnette contends that the ALJ’s decision not to credit Dr. Agarwal
was not supported by substantial evidence. We disagree. The ALJ was well
within its discretion to conclude that Dr. Agarwal’s checking a single box on a
single form without any supporting medical evidence did not outweigh the
other substantial record evidence supporting a finding of no disability. The
ALJ’s choice not to credit Dr. Agarwal was not error.

In explaining why it did not lend much credence to Dr. Agarwal’s opinion, the ALJ
also noted that Dr. Agarwal had herself indicated only one month prior to filling out the form
that DeJohnette was “doing well.”
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B.

Credibility Determination

DeJohnette next argues that the ALJ’s conclusion that DeJohnette’s
“statements concerning the intensity, persistence and limiting effects” of his
symptoms were not credible was not supported by substantial evidence. As the
district court explained, the ALJ’s adverse credibility determination was based
largely on the fact that DeJohnette “was not compliant with his medication.
There was record evidence demonstrating his condition often improved when
he was compliant with his medication. . . . Moreover, there is record evidence
that [DeJohnette] did not complete activities suggested by his treating
psychologist at the time which may have improved his condition.” The ALJ
thus found that DeJohnette’s noncompliance with prescribed treatment made
his testimony as to the severity of his symptoms not credible.
DeJohnette now argues that the ALJ’s credibility determination was
flawed because, to the extent that DeJohnette was not complaint with his
treatment, that noncompliance was itself caused by his medical condition. He
contends, in short, that the nature of his medical condition “excuses any
noncompliance.” But, as the Commissioner notes in her brief, the ALJ asked
DeJohnette point blank, “do you take the medication as prescribed by your
doctors?” and DeJohnette answered, “Yes sir.” Thus, DeJohnette’s argument
before us now that his noncompliance is excusable—which implicitly
acknowledges

that

such

noncompliance

existed—itself

contradicts

DeJohnette’s own testimony and calls his credibility into question. The ALJ’s
adverse credibility determination was amply supported by substantial record
evidence.
C.

VE’s Testimony

Finally, DeJohnette argues that the ALJ erred in relying on the VE’s
testimony to the effect that DeJohnette could work in his old job at the paper
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mill. The ALJ asked the VE whether a hypothetical individual with limitations
comparable to DeJohnette’s would be able to perform work as a laborer in a
paper mill. The VE answered in the affirmative. DeJohnette now argues that,
because the ALJ incorrectly discredited Dr. Agarwal’s medical findings, the
hypothetical person the ALJ described to the VE—who embodied DeJohnette’s
limitations as the ALJ saw them—was not actually an accurate reflection of
DeJohnette. Because we conclude that the ALJ correctly gave little weight to
Dr. Agarwal’s medical findings such as they were, this argument is also
unavailing. The hypothetical person described to the VE was fairly analogous
to DeJohnette, and so the ALJ’s decision to credit the VE’s testimony was
supported by substantial evidence.
IV
We AFFIRM the holding of the district court.

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