Davis v. Social Security Administration
Filing
27
ORDER AND REASONS ADOPTING 20 REPORT AND RECOMMENDATIONS. IT IS HEREBY ORDERED that the Court OVERRULES Plaintiff's objections, and ADOPTS the Magistrate Judge's recommendation; IT IS FURTHER ORDERED that the ALJ's decision denying Dafney Davis' claim for Disability Insurance Benefits, Disabled Widow's Benefits and Supplemental Security Income Benefits be AFFIRMED. Signed by Judge Nannette Jolivette Brown on 3/21/2017.(mmv)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAFNEY DAVIS
CIVIL ACTION
VERSUS
NO. 15-5981
SOCIAL SECURITY ADMINISTRATION
SECTION: “G”(4)
ORDER AND REASONS
Before the Court are Plaintiff Dafney Davis’s (“Plaintiff”) objections1 to the December 21,
2016 Report and Recommendation of the United States Magistrate Judge assigned to the case.2
Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for review of the final decision of
Defendant the Acting Commissioner of the Social Security Administration (the “Commissioner”
or “Defendant”) denying her claim for disability insurance benefits (“DBI”), disabled widow’s
benefits (“DWB”), and supplemental security income (“SSI”) under Titles II and XVI of the Social
Security Act (the “Act”).3 The Magistrate Judge recommended that the Administrative Law
Judge’s (“ALJ”) decision denying Plaintiff’s application for benefits be affirmed.4 Having
considered Plaintiff’s objections, the Magistrate Judge’s Report and Recommendation, the record,
and the applicable law, for the following reasons the Court will overrule Plaintiff’s objections and
adopt the Magistrate Judge’s Report and Recommendation.
1
Rec. Doc. 25.
2
Rec. Doc. 20.
3
Rec. Docs. 1, 16.
4
Rec. Doc. 14 at 13.
I. Background
A.
Procedural History
On November 30, 2012, Plaintiff filed an application for DBI, DWB, and SSI, alleging that
her disability began on October 4, 2012, due to depression, anxiety, stress, and grief.5 After her
claims were denied at the agency level, Plaintiff requested a hearing before an ALJ, which was
held on March 14, 2014.6 Plaintiff and a vocational expert participated in the hearing.7
On May 8, 2014, the ALJ issued a decision denying Plaintiff’s application for benefits.8
The ALJ analyzed Plaintiff’s claim pursuant to the five-step sequential evaluation process.9 At
5
Adm. Rec. at 201–20.
6
Id. at 46–70.
7
Id.
8
Id. at 24–41.
9
The five-step analysis requires consideration of the following:
First, if the claimant is currently engaged in substantial gainful employment, he or she is found not disabled.
20 C.F.R. §§ 404.1520(b), 416.920(b).
Second, if it is determined that, although the claimant is not engaged in substantial employment, he or she
has no severe mental or physical impairment which would limit the ability to perform basic work-related functions,
the claimant is found not disabled. Id. §§ 404.1520(c), 416.920(c).
Third, if an individual’s impairment has lasted or can be expected to last for a continuous period of twelve
months and is either included in a list of serious impairments in the regulations or is medically equivalent to a listed
impairment, he or she is considered disabled without consideration of vocational evidence. Id. §§ 404.1520(d),
416.920(d).
Fourth, if a determination of disabled or not disabled cannot be made by these steps and the claimant has a
severe impairment, the claimant’s residual functional capacity and its effect on the claimant’s past relevant work are
evaluated. If the impairment does not prohibit the claimant from returning to his or her former employment, the
claimant is not disabled. Id. §§ 404.1520(e), 416.920(e).
Fifth, if it is determined that the claimant cannot return to his or her former employment, then the claimant’s
age, education, and work experience are considered to see whether he or she can meet the physical and mental demands
of a significant number of jobs in the national economy. If the claimant cannot meet the demands, he or she will be
found disabled. Id. §§ 404.1520(f)(1), 416.920(f)(1). To assist the Commissioner at this stage, the regulations provide
certain tables that reflect major functional and vocational patterns. When the findings made with respect to a claimant’s
2
step one, the ALJ concluded that Plaintiff had not engaged in substantial gainful activity since
October 4, 2012, the alleged onset date.10 At step two, the ALJ concluded that Plaintiff has the
following medically determinable impairments: “affective disorder, bereavement disorder, anxiety
disorder, and knee pain.”11 However, the ALJ held that Plaintiff did not have an impairment or
combination of impairments that significantly limited her ability to perform basic work-related
activities for 12 consecutive months.12 Therefore, the ALJ concluded that Plaintiff did not have a
severe impairment or combination of impairments.13 Accordingly, the ALJ determined that
Plaintiff was not under a disability from October 4, 2012, through the date of the decision.14
Plaintiff requested review by the Appeals Council.15 The ALJ’s decision became the final
decision of the Commissioner for purposes of this Court’s review after the Appeals Council denied
review on September 24, 2015.16 On November 18, 2015, Plaintiff filed a complaint seeking
judicial review pursuant to Section 405(g) of the Act,17 and on May 9, 2015, with leave of Court,
Plaintiff filed an amended complaint.18 This matter was referred to a United States Magistrate
vocational factors and residual functional capacity coincide, the rules direct a determination of disabled or not
disabled. Id. § 404, Subpt. P, App. 2, §§ 200.00-204.00, 416.969.
10
Adm. Rec. at 30.
11
Id.
12
Id.
13
Id.
14
Id. at 36.
15
Id. at 17–23.
16
Id. at 1–6.
17
Rec. Doc. 2.
18
Rec. Doc. 16.
3
Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2(B). On May 5, 2016, the Commissioner
answered the complaint.19
On June 14, 2016, Plaintiff filed a brief arguing that the ALJ erred when she: (1) held that
Plaintiff’s recurrent major depressive disorder and adjustment disorder were not severe; (2) failed
to comport with the legal standards found in Listing 12.04; (3) failed to complete the functional
capacity assessment such that it is not supported by substantial evidence; and (4) failed to point to
other work in significant numbers in the national economy given Plaintiff’s residual functional
capacity.20 On July 29, 2016, the Commissioner filed a reply brief arguing that substantial evidence
supports the ALJ’s determination that Plaintiff’s conditions were not severe.21
B.
Report and Recommendation Findings
The Magistrate Judge issued a Report and Recommendation on December 21, 2016.22 First,
the Magistrate Judge addressed Plaintiff’s argument that the ALJ erred in finding that her major
depressive disorder and adjustment disorder were not severe.23 In support of her claim, Plaintiff
argued that the onset date of her conditions began with the violent murder of her grandson whom
she had adopted.24 The Magistrate Judge determined that the medical evidence did not support
19
Rec. Doc. 13.
20
Rec. Doc. 18.
21
Rec. Doc. 19.
22
Rec. Doc. 20.
23
Id. at 4.
24
Id.
4
Plaintiff’s contention that she met the listing level for a severe mental impairment.25 The
Magistrate Judge found that the medical evidence showed that Plaintiff’s ability to function
improved with medication, and that she had not been hospitalized for any psychiatric conditions.26
The Magistrate Judge noted that two months after Plaintiff’s adopted son’s death, she reported
decreased sleep, irritability, crying spells, and a sense of hopelessness.27 However, a year later the
medical records showed that Plaintiff’s affect was much lighter and brighter.28 Accordingly, the
Magistrate Judge determined that the ALJ’s decision that Plaintiff’s mental impairments were not
severe was based on substantial evidence.29
Second, the Magistrate Judge addressed Plaintiff’s contention that the residual functional
capacity (“RFC”) assessment was incomplete and therefore not based on substantial evidence.30
The Magistrate Judge noted that no RFC was associated with Plaintiff’s claim.31 Plaintiff pointed
to her February 22, 2013 consultative examination by Dr. Fowler, where Dr. Fowler noted that
Plaintiff had a depressive reaction to her grandson’s death, limited persistence, and slower pace
with diminished social interaction and motivation.32 Plaintiff argued that her daily episodes of
crying, isolation, and anhedonia diminished her concentration, resulting in breaks rendering her
25
Id. at 8.
26
Id.
27
Id. at 8–9 (citing Adm. Rec. at 398).
28
Id. at 9 (citing Adm. Rec. at 338).
29
Id.
30
Id.
31
Id.
32
Id. at 11 (citing Adm. Rec. at 300).
5
employment unsustainable.33 The Magistrate Judge concluded that the ALJ properly considered
the totality of the medicals, which showed that by September 2013, Plaintiff reported that her
symptoms had improved, and that the ALJ correctly concluded that Dr. Fowler’s opinions were
inconsistent with Plaintiff’s treatment records.34 Accordingly, the Magistrate Judge found that the
ALJ’s RFC determination was based upon substantial evidence.35
Finally, the Magistrate Judge addressed Plaintiff’s argument that the ALJ failed to present
demonstrable evidence of other work in significant numbers in the national economy given
Plaintiff’s RFC.36 The Magistrate Judge noted that the ALJ determined at Step 2 that Plaintiff’s
physical and mental impairments neither singly nor in combination significantly limited her ability
to perform basic work activities.37 Because the ALJ properly determined that Plaintiff was not
disabled at Step 2, the Magistrate Judgr concluded that the ALJ was not required to reach Step 5
and consider the number of jobs available in the national economy.38
33
Id.
34
Id.
35
Id.
36
Id. at 12.
37
Id.
38
Id. at 13.
6
II. Objections
A.
Plaintiff’s Objections
Plaintiff timely filed objections to the Magistrate Judge’s Report and Recommendation on
January 13, 2017.39 Plaintiff contends that the Magistrate Judge erred in affirming the ALJ’s
finding that her major depressive disorder, panic disorder, and adjustment disorder were not severe
impairments.40 She contends that her “mental impairments would impose more than minimal
limitation on her ability to perform even basic work-related activities on a regular and continuous
basis.”41 In addition, Plaintiff submits that her ongoing treatment sufficiently demonstrated that
her condition could be expected to last at least 12 months.42 Accordingly, Plaintiff contends that
her mental conditions were severe.43
Plaintiff notes that she reported crying spells, decreased sleep, fatigue, hopelessness, rapid
mood swings, panic attacks, racing thoughts, anhedonia, isolating behavior, decreased appetite,
and decreased energy following the death of her adopted son.44 Based on these symptoms, Plaintiff
asserts that it would be reasonable to conclude that she suffers intense, persistent, and functionally
limiting effects, including difficulties concentrating and participating in attention demanding low-
39
Rec. Doc. 25. On January 3, 2017, the Court granted Plaintiff an additional 10 days to file her objections.
Rec. Doc. 23.
40
Rec. Doc. 25-1 at 6.
41
Id. at 7.
42
Id.
43
Id.
44
Id. (citing Adm. Rec. at 296–99, 312, 377, 393, 398, 402).
7
stress tasks.45 Plaintiff contends that this conclusion is supported by the opinion of the consultative
examiner, Dr. Fowler.46 Therefore, Plaintiff submits that the combination of her impairments
would impose more than a minimal impact on her ability to engage in, and maintain, routine
competitive employment.47
Plaintiff acknowledges that she reported some improvement in her mental conditions with
treatment.48 However, she asserts that the record reflects numerous instances where she reported
ongoing symptoms and limitations as a result of her impairments.49 Plaintiff contends that although
she reported some improvement in her symptoms, “it does not mean that her conditions did not
have more than a minimal effect on her ability to perform work-related activities.”50 Plaintiff notes
that she reported that she only feels comfortable while she is in group therapy, and otherwise she
does not want to be around people or leave the house.51 Moreover, Plaintiff points to Dr. Fowler’s
opinion that she had limited persistence and slowed pace, endorsed diminished social interactions
and motivation, and appeared to be more comfortable alone.52 Based on these factors, Plaintiff
notes that Dr. Fowler concluded that she would have difficulty functioning for extended periods
45
Id.
46
Id. (citing Adm. Rec. at 300).
47
Id.
48
Id. at 8.
49
Id. (citing Adm. Rec. at 312, 330, 342, 349, 353, 356, 358, 368, 370, 377, 393, 459).
50
Id.
51
Id. (citing Adm. Rec. at 312, 330, 349, 351, 353, 368, 429, 438, 441).
52
Id. (citing Adm. Rec. at 300).
8
of time.53 For these reasons, Plaintiff asserts that the evidence sufficiently demonstrates that her
mental impairments would have a more than minimal impact on her ability to perform work-related
activities, and therefore constitute severe impairments.54 Accordingly, Plaintiff contends that the
Magistrate Judge’s finding that the ALJ’s determination at Step 2 was supported by substantial
evidence is without merit.55
B.
The Commissioner’s Response
The Commissioner did not file a brief in opposition to Plaintiff’s objections despite
receiving electronic notice of the filing posted on January 13, 2017.
III. Standard of Review
A.
Review of the Magistrate Judge’s Report and Recommendation
In accordance with Local Rule 73.2, this case was referred to the Magistrate Judge to
provide a Report and Recommendation. A district judge “may accept, reject, or modify the
recommended disposition” of a magistrate judge on a dispositive matter.56 The district judge must
“determine de novo any part of the [Report and Recommendation] that has been properly objected
to.”57 A district court’s review is limited to plain error of parts of the report which are not properly
objected to.58
53
Id. (citing Adm. Rec. at 300).
54
Id.
55
Id. at 8–9.
56
FED. R. CIV. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).
57
Id.
58
See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen days).
9
B.
Standard of Review of Commissioner’s Final Decision
Under 42 U.S.C. § 405(g) the district court has the power to enter “a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.”59 Appellate review of the Commissioner’s denial of benefits
is limited to determining whether the decision is supported by substantial evidence in the record
and whether the proper legal standards were used in evaluating the evidence.60 “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.”61 The Court must review the
whole record to determine if such evidence exists.62 However, the district court cannot “reweigh
the evidence in the record, try the issues de novo, or substitute its judgment for the
Commissioner’s.”63 The ALJ is entitled to make any finding that is supported by substantial
evidence, regardless of whether other conclusions are also permissible.64 A court “weigh[s] four
elements of proof when determining whether there is substantial evidence of disability: (1)
objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the
59
42 U.S.C. § 405(g).
60
Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005); Waters v. Barnhart, 276 F.3d 716, 716 (5th Cir.
2002); Loza v. Apfel, 219 F.3d 378, 390 (5th Cir. 2000); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990).
61
Richardson v. Perales, 402 U.S. 389, 401 (1971); Perez, 415 F.3d at 461; Loza, 219 F.3d at 393; Villa,
895 F.2d at 1021-22 (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983); Randall v. Sullivan, 956 F.2d
105, 109 (5th Cir. 1992)).
62
Singletary v. Bowen, 798 F.2d 818, 822-23 (5th Cir. 1986).
63
Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).
64
See Arkansas v. Oklahoma, 503 U.S. 91 (1992).
10
claimant’s subjective evidence of pain and disability; and (4) his age, education, and work
history.”65
IV. Law and Analysis
A.
Applicable Law to Qualification for Benefits
To be considered disabled, a claimant must show that he is unable “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.”66 The Commissioner has promulgated
regulations that provide procedures for evaluating a claim and determining disability.67 The
regulations include a five-step evaluation process for determining whether an impairment
constitutes a disability, and the five-step inquiry terminates if the Commissioner finds at any step
that the claimant is or is not disabled.68 The claimant has the burden of proof under the first four
parts of the inquiry, and if he successfully carries this burden, the burden shifts to the
Commissioner at step five to show that the claimant is capable of engaging in alternative
substantial gainful employment, which is available in the national economy.69
In the instant case, the ALJ concluded that Plaintiff has the following medically
determinable impairments: “affective disorder, bereavement disorder, anxiety disorder, and knee
65
Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995).
66
42 U.S.C. § 423(d)(1)(A).
67
20 C.F.R. §§ 404.1501 to 404.1599 & Apps., §§ 416.901 to 416.998 (2008).
68
Id. §§ 404.1520, 416.920; Perez, 415 F.3d at 461.
69
Perez, 415 F.3d at 461; Newton, 209 F.3d at 453.
11
pain.”70 The ALJ held that Plaintiff did not have an impairment or combination of impairments
that significantly limited her ability to perform basic work related activities for 12 consecutive
months.71 Therefore, the ALJ concluded that Plaintiff did not have a severe impairment or
combination of impairments.72 Accordingly, the ALJ determined that Plaintiff was not under a
disability from October 4, 2012, through the date of the decision.73 The Court may disturb that
finding only if the ALJ lacked “substantial evidence” to support it.74
B.
The ALJ’s Determination that Plaintiff’s Mental Conditions Were Not Severe
The Magistrate Judge found that the ALJ’s decision that Plaintiff’s mental impairments
were not severe was based on substantial evidence.75 Plaintiff objects to this determination, arguing
that the Magistrate Judge erred in affirming the ALJ’s finding that her major depressive disorder,
panic disorder, and adjustment disorder were not severe impairments.76 Accordingly, the Court
reviews this issue de novo.
“A non-severe impairment under the Social Security regulations is one that ‘does not
significantly limit [the claimant’s] physical or mental ability to do basic work activities.’”77 If the
claimant does not have a severe medically determinable physical or mental impairment, or
70
Adm. Rec. at 30.
71
Id.
72
Id.
73
Id. at 36.
74
See Perez, 415 F.3d at 461
75
Rec. Doc. 20 at 9.
76
Rec. Doc. 25-1 at 6.
77
Giles v. Astrue, 433 F. App’x 241, 245–46 (5th Cir. 2011) (quoting 20 C.F.R. § 404.1521).
12
combination of impairments, that has lasted or is expected to last for a continuous period of at least
12 months, the Commissioner will find that the claimant is not disabled.78
In determining whether a claimant with a mental impairment meets a listed impairment,
the Commissioner considers: (1) whether specified diagnostic criteria (“paragraph A” criteria) are
met; and (2) whether specified functional restrictions are present (“paragraph B” criteria).79 “The
required level of severity for listing 12.04 is met when the requirements in both subsections A and
B are satisfied.”80 “Subsection B requires the claimant to show that his activities have been
impaired in at least two of four areas.”81 These four areas are:
1.
Marked restriction in activities of daily living;
2.
Marked difficulties in maintaining social functioning;
3.
Deficiencies of concentration, persistence, or pace resulting in frequent
failure to complete tasks in a timely manner (in work settings or elsewhere);
4.
Repeated episodes of deterioration or decompensation in work or work-like
settings which cause the individual to withdraw from that situation or to
experience exacerbation of signs and symptoms (which may include
deterioration of adaptive behaviors).82
Even if a claimant’s mental impairment does not meet the criteria specified in the listings,
he must be found disabled if his condition “is equal to” a listed impairment.83 In determining
78
20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii).
79
20 C.F.R. § 404.1520a.
80
Stephens v. Barnhart, 174 F. App’x 232, 233 (5th Cir. 2006) (quoting Boyd v. Apfel, 239 F.3d 698, 703
n.8 (5th Cir. 2001)).
81
Id.
82
20 C.F.R. § 404, Subpt. P., App. 1, § 12.04(B).
83
20 C.F.R. § 404.1520(d).
13
whether the claimant’s combination of impairments equals a particular listing, the Commissioner
must consider whether her “symptoms, signs, and laboratory findings are at least equal in severity
to the listed criteria.”84
Here, in reaching her conclusion that Plaintiff’s mental impairments were not severe, the
ALJ reviewed Plaintiff’s hearing testimony and the medical evidence.85 The ALJ noted that
Plaintiff alleged that depression, anxiety, stress, and grief due to the death of her 15-year-old
adopted son (her grandchild) on October 4, 2012, prevented her from working.86 The ALJ stated
that Plaintiff began attending weekly grief counseling on October 24, 2012.87 The ALJ also noted
that Plaintiff was assessed by a licensed clinical social worker at the Jefferson Parish Human
Service Authority—East Jefferson Mental Health Center on November 19, 2012.88 The ALJ
recalled that Plaintiff had reported decreased sleep and appetite, increased irritability, panic
attacks, rapid mood swings, racing thoughts, crying spells, apathy, poor memory, and feelings of
hopelessness.89
The ALJ reviewed the record of a February 18, 2013 psychiatric evaluation by Marianne
Call, APRN, at the Jefferson Parish Human Service Authority—East Jefferson Mental Health
84
20 C.F.R. § 404.1529(d)(3).
85
Adm. Rec. at 31–35.
86
Id. at 31.
87
Id. at 32.
88
Id.
89
Id.
14
Center.90 The medical record reflected that Plaintiff complained of poor sleep, decreased appetite,
crying spells, feeling dazed at times, anhedonia, isolation, and panic attacks that lasted for several
minutes.91 The ALJ noted that Ms. Call diagnosed Plaintiff with major depressive disorder
recurrent moderate and panic disorder without agoraphobia.92 The ALJ also noted that on February
18, 2013, Ms. Call prescribed Lexapro and Hydroxyzine to Plaintiff.93 On July 17, 2013, Plaintiff
reported increased symptoms of depression after she ran out of medication, and Ms. Call restarted
Plaintiff on Lexapro and Hydroxyzine.94
The ALJ reviewed medical notes from Plaintiff’s group psychotherapy sessions.95 During
a February 7, 2013 session, it was reported that, though sad, Plaintiff was feeling better and was
responding positively to the session.96 During a March 7, 2013 session, Plaintiff’s affect was much
brighter and lighter, and during a March 14, 2013 session, Plaintiff could see a difference in her
mood after starting medication.97 Finally, during a March 14, 2013 session, Plaintiff reported
decreased panic attacks due to medication and group sessions.98
90
Id.
91
Id.
92
Id.
93
Id.
94
Id. at 33.
95
Id. at 32.
96
Id.
97
Id.
98
Id.
15
The ALJ also reviewed medical notes from Plaintiff’s individual therapy sessions.99 During
an April 22, 2013 session, Plaintiff’s mental status was within normal limits except for an anxious
attitude, sad mood, scattered speech, and a rational but somewhat tangential thought process.100
During a May 24, 2013 session, Plaintiff reported that she was sleeping more, eating more, and
was able to think about her son without crying.101 During a June 7, 2013 session, Plaintiff stated
that she was able to find some peace and was trying to look at her new life with joy.102 Finally,
during a June 21, 2013 session, Plaintiff reported that her medications were working despite some
minor incidents of panic.103
The ALJ reviewed the medical records of a consultative examination performed by Dr.
William Fowler on February 22, 2013.104 Dr. Fowler found that Plaintiff’s thought process was
logical, coherent, and goal directed, but he found her mood to be depressed.105 Dr. Fowler
diagnosed Plaintiff with adjustment disorder with mixed emotional features.106 Dr. Fowler opined
that Plaintiff could understand simple instructions but that her persistence was limited, her pace
was slowed, her social interactions were diminished, her motivation was diminished, she seemed
99
Id. at 32–33.
100
Id. at 32.
101
Id. at 32–33.
102
Id. at 33.
103
Id.
104
Id.
105
Id.
106
Id.
16
more comfortable alone or in small groups, and she lacked initiative and energy.107 Dr. Fowler
concluded that it would be difficult for Plaintiff to function for extended periods of time based on
her current condition.108
In considering what limitations, if any, would result from Plaintiff’s mental impairments,
the ALJ found no more than mild restrictions in activities of daily living, mild difficulties in
maintaining social functioning, mild deficiencies of concentration, persistence, or pace, and no
episodes of decompensation.109 The ALJ noted that in Plaintiff’s testimony she reported that she
had no problems attending to her personal care, needed no reminders to take care of her personal
needs, and she was able to prepare meals, perform housework, go out alone, walk outside, use
public transportation, shop for food and household items, and handle money.110 Although Dr.
Fowler noted several limitations to Plaintiff’s functioning, the ALJ noted that the treatment records
from Jefferson Parish Human Service Authority—East Jefferson Mental Health Center reflected
significantly improved symptoms after the initiation of medication.111 Accordingly, because
Plaintiff’s “medically determinable mental impairments caused no more than ‘mild’ limitation in
any of the first three functioning areas and ‘no’ episodes of decompensation which have been of
extended duration in the fourth area,” the ALJ concluded that the conditions were not severe.112
107
Id.
108
Id.
109
Id. at 34.
110
Id.
111
Id.
112
Id. at 35 (citing 20 C.F.R. 404.1520a(d)(1) and 416.920a(d)(1)).
17
The ALJ noted that no treating health care provider had placed any specific restrictions or
limitations on Plaintiff.113 The ALJ accorded some weight to the assessment by Dr. Fowler, the
consultative examiner, but found his diagnosis of adjustment disorder was not consistent with
Plaintiff’s symptoms.114 The ALJ stated that she agreed with the conclusions of the non-examining
state agency psychologist dated September 3, 2013, that Plaintiff’s affective disorder and anxiety
disorder were non-severe. 115 The ALJ accorded little weight to a July 22, 2013 determination by
a non-examining state agency psychologist that concluded that Plaintiff’s affective disorder was
severe because it was outweighed by the September 3, 2013 evaluation, which was based on new
treatment records.116
Plaintiff notes that she reported crying spells, decreased sleep, fatigue, hopelessness, rapid
mood swings, panic attacks, racing thoughts, anhedonia, isolating behavior, decreased appetite,
and decreased energy following the death of her adopted son.117 Based on these symptoms,
Plaintiff asserts that it would be reasonable to conclude that she suffers intense, persistent, and
functionally limiting effects, including difficulties concentrating and participating in attention
demanding low-stress tasks.118 Plaintiff contends that this conclusion is supported by the opinion
113
Id.
114
Id.
115
Id.
116
Id.
117
Rec. Doc. 25-1 at 7 (citing Adm. Rec. at 296–99, 312, 377, 393, 398, 402).
118
Id.
18
of the consultative examiner, Dr. Fowler.119 Therefore, Plaintiff submits that the combination of
her impairments would impose more than a minimal impact on her ability to engage in, and
maintain, routine competitive employment.120 Plaintiff acknowledges that she reported some
improvement in her mental conditions with treatment.121 However, she asserts that the record
reflects numerous instances where she reported ongoing symptoms and limitations as a result of
her impairments.122
The Fifth Circuit has held that “[a]n ALJ has discretion to judge a claimant’s credibility
and must evaluate subjective complaints in light of the objective medical evidence on record.”123
Credibility determinations are generally entitled to great deference.124 Plaintiff started taking
medication on February 20, 2013, two days before the examination by Dr. Fowler.125 Although
there are instances in the medical records that show Plaintiff was reporting ongoing symptoms,126
the medical evidence supports the ALJ’s conclusion that Plaintiff’s ability to function improved
with medication and therapy.127 Plaintiff argues that the ALJ should have reached the opposite
119
Id. (citing Adm. Rec. at 300).
120
Id.
121
Id. at 8.
122
Id. (citing Adm. Rec. at 312, 330, 342, 349, 353, 356, 358, 368, 370, 377, 393, 459).
123
Foster v. Astrue, 277 F. App’x 462, 465 (5th Cir. 2008) (citing Johnson v. Heckler, 767 F.2d 180, 182
(5th Cir. 1985)).
124
Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000).
125
Adm. Rec. at 298.
126
Id. at 312, 330, 342, 349, 353, 356, 358, 368, 370, 377, 393, 459.
127
Id. at 113, 312–13, 362–64, 374, 428–29, 436, 438, 447, 454, 456.
19
conclusion in evaluating her medical records, but she does not point to any evidence that the ALJ
failed to evaluate. This Court cannot reweigh the evidence in the record or substitute its judgment
for the ALJ’s.128 Accordingly, the Court concludes that the ALJ’s decision that Plaintiff’s mental
impairments were not severe was based on substantial evidence.
C.
Portions of the Report and Recommendation that Were Not Objected To
Plaintiff does not object to the Magistrate Judge’s finding that the ALJ’s RFC
determination was based upon substantial evidence.129 The Magistrate Judge concluded that the
ALJ properly considered the totality of the medicals, which showed that by September 2013,
Plaintiff reported that her symptoms had improved, and that the ALJ correctly concluded that Dr.
Fowler’s opinions were inconsistent with Plaintiff’s treatment records.130 Reviewing this
determination for plain error, and finding none, the Court adopts the Magistrate Judge’s conclusion
that the ALJ’s RFC determination was based upon substantial evidence.131
Finally, the Magistrate Judge addressed Plaintiff’s argument that the ALJ failed to present
demonstrable evidence of other work in significant numbers in the national economy given
Plaintiff’s RFC.132 Because the ALJ properly determined that Plaintiff was not disabled at Step 2,
the Magistrate Judge concluded that the ALJ was not required to reach Step 5 and consider the
128
Newton, 209 F.3d at 452.
129
Rec. Doc. 20 at 11.
130
Id.
131
Id.
132
Id. at 12.
20
number of jobs available in the national economy.133 Plaintiff does not object to this determination.
“A finding that a claimant is disabled or not disabled at any point in the five-step process is
conclusive and terminates the [ALJ’s] analysis.”134 Accordingly, the Court adopts the Magistrate
Judge’s determination that the ALJ was not required to reach Step 5.
V. Conclusion
For the foregoing reasons, the Court finds that the ALJ’s determination that
Plaintiff’s mental impairments were not severe was based on substantial evidence. The Court also
adopts the Magistrate Judge’s conclusion that the ALJ’s RFC determination was based upon
substantial evidence, and the Magistrate Judge’s determination that the ALJ was not required to
reach Step 5. Accordingly,
IT IS HEREBY ORDERED that the Court OVERRULES Plaintiff’s objections, and
ADOPTS the Magistrate Judge’s recommendation;
IT IS FURTHER ORDERED that the ALJ’s decision denying Dafney Davis’ claim for
Disability Insurance Benefits, Disabled Widow’s Benefits and Supplemental Security Income
Benefits be AFFIRMED.
NEW ORLEANS, LOUISIANA, this ____ day of March, 2017.
21st
__________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
133
Id. at 13.
134
Alexander v. Astrue, 412 F. App’x 719, 721 (5th Cir. 2011).
21
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