Conley v. Social Security Administration

Filing 25

ORDER that the Court OVERRULES Plaintiffs objections, and ADOPTS the Magistrate Judges REPORT AND RECOMMENDATIONS 23 ; IT IS FURTHER ORDERED that the ALJs decision denying James Conleys claim for Disability Insurance Benefits and Supplemental Security Income Benefits is AFFIRMED. Signed by Judge Nannette Jolivette Brown on 8/9/2017.(caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES CONLEY

CIVIL ACTION

VERSUS

NO. 16-9967

CAROLYN W. COLVIN, ACTING COMMISSIONER
OF THE SOCIAL SECURITY ADMINISTRATION

SECTION: “G”(2)

ORDER AND REASONS
Before the Court are Plaintiff James Conley’s (“Plaintiff”) objections1 to the February 2,
2017 “Findings 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 his claim for disability insurance benefits (“DBI”) 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 Findings and Recommendation, the record, and the applicable law, for the
following reasons the Court will overrule Plaintiff’s objections, adopt the Magistrate Judge’s
Findings and Recommendation, and affirm the ALJ’s decision.

1

Rec. Doc. 24.

2

Rec. Doc. 23.

3

Rec. Doc. 1.

4

Rec. Doc. 23 at 32–33.

I. Background
A.

Procedural History
When Plaintiff filed his original application for DBI and SSI on December 19, 2013,

Plaintiff alleged that his disability began on January 1, 2013, due to residual effects of a stroke,
memory loss, anxiety, high blood pressure, and hearing loss in his left ear.5 In this appeal, Plaintiff
argues that his hypertension, anxiety and mood disorder, urinary frequency, and obstructive sleep
apnea are severe impairments, and that the combined effects of his multiple medical impairments
render him disabled.6
After Plaintiff’s claims were denied at the agency level, Plaintiff requested a hearing before
an ALJ, which was held on November 13, 2014.7 Plaintiff and a vocational expert participated in
the hearing.8 On February 27, 2015, the ALJ issued a decision denying Plaintiff’s application for
benefits.9 The ALJ analyzed Plaintiff’s claim pursuant to the five-step sequential evaluation
process.10 At step one, the ALJ concluded that Plaintiff had not engaged in substantial gainful

5

Adm. Rec. at 135–150, 173.

6

See Rec. Doc. 21 at 7.

7

Adm. Rec. at 35–65.

8

Id.

9

Adm. Rec. at 11–20.

10

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

2

activity since January 1, 2013, the alleged onset date.11 At step two, the ALJ concluded that
Plaintiff has the following severe impairments: “cardiac dysrhythmia and syncopal episodes.”12
The ALJ also concluded that Plaintiff’s benign prostatic hypertrophy and anxiety were non-severe
impairments.13 At step three, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments under the regulations.14
At step four, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to
perform light work with the following restrictions: (1) Plaintiff can occasionally climb ramps and
stairs; (2) he can never climb ladders, ropes, and scaffolds; (3) he must avoid all exposure to
workplace hazards such as moving machinery and heights; (4) he can occasionally reach in all
directions; and (5) once per quarter, on an unpredictable basis, he must miss one day of work.15 At

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
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.
11

Adm. Rec. at 13.

12

Id.

13

Id. at 14.

14

Id. at 15.

15

Id.

3

step four, the ALJ also found that Plaintiff was capable of performing his past relevant work as a
probation and parole officer.16 Therefore, the ALJ determined that Plaintiff was not under a
disability from January 1, 2013, through the date of the decision.17
Plaintiff requested review by the Appeals Council.18 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 April 15, 2016.19 On June 14, 2016, Plaintiff filed a complaint seeking judicial review
pursuant to Section 405(g) of the Act.20 This matter was referred to a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2(B). On September 19, 2016, the
Commissioner answered the complaint.21
On October 21, 2016, Plaintiff filed a brief arguing that the ALJ erred when he: (1) failed
to find that Plaintiff’s hypertension, anxiety and mood disorder, urinary frequency, and obstructive
sleep apnea were severe impairments; (2) failed to consider the combined effects of Plaintiff’s
multiple impairments; (3) failed to follow the proper legal standards in determining how much
weight to accord the opinions of Plaintiff’s treating physicians; and (4) failed to properly consider
evidence indicating that Plaintiff did not have the RFC to sustain any significant gainful

16

Id. at 19.

17

Id. at 20.

18

Id. at 7.

19

Id. at 1–6.

20

Rec. Doc. 1.

21

Rec. Doc. 18.

4

employment.22 On November 21, 2016, the Commissioner filed a brief arguing that substantial
evidence supports the ALJ’s determination.23
B.

The Magistrate Judge’s Findings and Recommendation
The Magistrate Judge issued his Findings and Recommendation on February 2, 2017.24

First, the Magistrate Judge addressed Plaintiff’s argument that the ALJ erred in finding that his
anxiety and mood disorder, urinary frequency, and obstructive sleep apnea were not severe.25 As
an initial matter, the Magistrate Judge noted that Plaintiff listed the failure to find that hypertension
was a severe impairment as an assignment of error, but did not provide any briefing on the issue.26
Therefore, the Magistrate Judge found any argument that Plaintiff’s hypertension was a severe
impairment to be abandoned.27 Turning to the other impairments, the Magistrate Judge noted that
the ALJ determined the medical severity of Plaintiff’s impairments at step two of the evaluation
process, but then proceeded beyond step two to find that Plaintiff was not disabled.28 Because the
ALJ considered all of the evidence concerning Plaintiff’s medically determinable impairments in
finding that Plaintiff could perform light work with restrictions, the Magistrate Judge concluded

22

Rec. Doc. 21.

23

Rec. Doc. 22.

24

Rec. Doc. 23.

25

Id. at 13.

26

Id. at 2, n.1.

27

Id.

28

Id. at 14.

5

that the ALJ’s determination that Plaintiff’s anxiety and mood disorder, urinary frequency, and
obstructive sleep apnea were not severe was irrelevant and non-prejudicial to Plaintiff.29
Moreover, the Magistrate Judge found that substantial evidence supported the ALJ’s
determination that these conditions were not severe, noting that Plaintiff relied primarily on his
own testimony and self-reported symptoms which were insufficient to establish a severe medical
impairment.30 The Magistrate Judge found substantial medical evidence to support the ALJ’s
finding that Plaintiff’s adjustment disorder was not severe, because Plaintiff had no limitations in
his activities of daily living, only mild limitations in social functioning and in concentration,
persistence, and pace, and no episodes of decompensation.31 The Magistrate Judge also found that
the medical evidence did not reflect that Plaintiff’s urinary frequency and urgency symptoms were
as severe as Plaintiff testified.32 As for Plaintiff’s sleep apnea, the Magistrate Judge determined
that the medical evidence did not indicate that Plaintiff was fully complying with his sleep apnea
treatment regimen, and Plaintiff did not cite any evidence of any functional limitations caused by
his sleep apnea.33 Accordingly, the Magistrate Judge concluded that the ALJ’s finding that

29

Id. at 15–16.

30
Id. at 16 (citing Charles v. Colvin, 628 F. App’x 290, 291 & n.3 (5th Cir. 2016); Quijas v. Astrue, 298 F.
App’x 391, 393 (5th Cir. 2008); Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001)); Harper v. Sullivan, 887
F.2d 92, 96 (5th Cir. 1989)).
31

Id. at 17.

32

Id. at 19.

33

Id. at 21.

6

Plaintiff’s anxiety and mood disorder, urinary frequency, and obstructive sleep apnea were not
severe was supported by substantial evidence.34
Second, the Magistrate Judge addressed Plaintiff’s contention that the ALJ failed to
consider the combined effects of Plaintiff’s impairments.35 The Magistrate Judge found that
Plaintiff’s list of subjective complaints and diagnoses did not establish any combined effects that
the ALJ failed to address.36 Accordingly, the Magistrate Judge determined that Plaintiff’s
assignment of error lacked merit.37
Third, the Magistrate Judge addressed Plaintiff’s argument that the ALJ failed to follow
proper legal standards in determining how much weight to give to the opinions of his treating
psychiatrist’s February 18, 2014 letter.38 The Magistrate Judge noted that the ALJ considered the
letter and concluded that it was not supported by the treatment record or by the consultative
psychiatrist’s opinion.39 Therefore, the Magistrate Judge found that this assignment of error lacked
merit, because substantial evidence supported the ALJ’s decision to disregard the treating
psychiatrist’s conclusion.40

34

Id.

35

Id.

36

Id. at 22.

37

Id. at 23.

38

Id.

39

Id.

40

Id. at 25.

7

Finally, the Magistrate Judge addressed Plaintiff’s argument that the ALJ failed to consider
all of the evidence in determining Plaintiff’s RFC to sustain gainful employment.41 The Magistrate
Judge reviewed the medical evidence of record.42 The Magistrate Judge noted that the ALJ had
acknowledged that Plaintiff’s medically determinable impairments “could reasonably be expected
to cause some of the alleged symptoms, but found that [Plaintiff’s] statements concerning the
intensity, persistence and limiting effects of his symptoms were not entirely credible.”43 The
Magistrate Judge determined that the ALJ’s credibility finding was supported by substantial
evidence.44 Moreover, the Magistrate Judge noted that the ALJ posed a hypothetical question to
the vocational expert that accounted for Plaintiff’s age, education, work experience and physical
limitations that the ALJ found credible, and the vocational expert testified that such a person could
perform Plaintiff’s past relevant work as a probation and parole officer.45 The Magistrate Judge
also noted that Plaintiff’s counsel questioned the vocational expert and asked her about the effects
of Plaintiff’s alleged additional impairments that would cause him to be absent from the workplace
excessively, and the vocational expert testified that such a person could not perform any jobs.46
However, because substantial evidence supported the ALJ’s finding that the record did not support
such limitations, the Magistrate Judge concluded that the ALJ was not required to include such

41

Id.

42

Id. at 26–29.

43

Id. at 30.

44

Id. at 31.

45

Id.

46

Id. at 32.

8

limitations in his hypothetical question to the vocational expert.47 Accordingly, the Magistrate
Judge determined that Plaintiff’s assignment of error lacked merit.48
II. Objections
A.

Plaintiff’s Objections
Plaintiff timely filed objections to the Magistrate Judge’s Findings and Recommendation

on February 16, 2017.49 Plaintiff raises the following objections to the Magistrate Judge’s Findings
and Recommendation: (1) Plaintiff’s hypertension, anxiety and mood disorder, and obstructive
sleep apnea are severe impairments when medical evidence and testimony are duly considered in
context of how the Fifth Circuit defines a severe impairment;50 (2) the failure to deem Plaintiff’s
hypertension, anxiety and mood disorder, and obstructive sleep apnea as severe “are both relevant
and prejudicial to proper consideration of how combined effects of multiple impairments diminish
his residual functional capacity;” (3) the opinion of the consulting psychiatrist, Sandra Durdin,
Ph.D., does not deserve as much weight as the opinions of his treating physicians; and (4) “[t]here
has been insufficient consideration of the emotional stress and anxiety inherent in work as a
probation officer.”51

47

Id.

48

Id.

49

Rec. Doc. 24.

50

Plaintiff does not object to the Magistrate Judge’s finding that substantial evidence supported the ALJ’s
determination that Plaintiff’s urinary frequency condition was not severe. Id. at 1–2.
51

Id. at 1–2.

9

First, Plaintiff asserts it was wrong to conclude that his hypertension, anxiety and mood
disorder, and obstructive sleep apnea were not severe impairments.52 Plaintiff contends that under
Fifth Circuit precedent “[a]n impairment is not severe ‘only if it is a slight abnormality [having]
such a minimal effect on the individual that it would not be expected to interfere with the
individual’s ability to work, irrespective of age, education or work experience.’”53 Plaintiff argues
that the medical evidence and his testimony establish that his hypertension, anxiety and mood
disorder, and obstructive sleep apnea have much more than a “minimal effect.”54 Therefore,
Plaintiff avers that there is “substantial evidence” that these impairments are severe.55
Second, Plaintiff contends that the failure to deem his hypertension, anxiety and mood
disorder, and obstructive sleep apnea as severe is relevant and prejudicial to proper consideration
of how the combined effects of his multiple impairments diminished his RFC.56 Plaintiff asserts
that it was an “over-simplification” for the Magistrate Judge to find that Plaintiff was not
prejudiced by the ALJ’s determination, because “the finding at step 5 would have been different
if the ALJ had deemed these other impairments to also be severe.”57 Specifically, Plaintiff argues
that a finding that these impairments are severe “should have forced the ALJ to put proper focus
on how these additional impairments combined with others to negatively affect residual functional

52

Id. at 2.

53

Id. (quoting Herrera v. Comm’r of Soc.Sec., 406 F. App’x 899, 902 n.1 (5th Cir. 2010) (quoting Loza v.
Apfel, 219 F.3d 378, 391 (5th Cir. 2000)).
54

Id.

55

Id. at 4.

56

Id. at 5.

57

Id. at 6.

10

capacity.”58 Plaintiff notes that his recurring syncopal episodes resulted in a restriction against
driving, which he contends alone should have been considered a severe restriction on his ability to
sustain employment as a probation officer.59 He also contends that the Magistrate Judge and the
ALJ failed to consider evidence of prescription medicines.60 He avers that “[i]t seems more than
relevant and prejudicial to conclude someone who requires multiple medicines to deal with
depression, anxiety, muscular pain, high blood pressure and stroke would have nothing more than
minimally diminished abilities to deal with criminals on probation.”61 Therefore, Plaintiff “objects
that there is a lack of substantial evidence that claimant could overcome the combined effects of
multiple impairments to resume full time employment as a probation and parole officer.”62
Third, Plaintiff asserts that the ALJ did not follow proper legal standards in determining
how much weight to accord the opinions of his treating physicians.63 Plaintiff contends that the
ALJ erred in giving so much weight to the opinion of the consultative psychologist, Dr. Durdin.64
He argues that the opinions of treating physicians should be accorded considerable weight,65 and
the ALJ may only give less weight to a treating physician’s opinion when “there is good cause

58

Id.

59

Id.

60

Id. at 7.

61

Id.

62

Id.

63

Id.

64

Id. at 8.

65

Id. (citing Scott v. Heckler, 770 F.2d 482, 485 (5th Cir.1985)).

11

shown to the contrary.”66 Plaintiff notes that he received treatment from Drs. Jackson and Russell
for several years, and they were consistent in their diagnosis of adjustment disorder.67 Plaintiff
also notes that Dr. Jackson’s February 18, 2014 letter lists a number of ways in which Plaintiff’s
psychiatric condition negatively affects Plaintiff and concludes that “[t]his makes it very difficult
for patient to properly interact with others in a work situation.”68 Therefore, Plaintiff contends that
the ALJ erred in choosing “to essentially ignore the reports and conclusions of Dr. Jackson.”69
Finally, Plaintiff argues that there is not substantial evidence to support the ALJ’s
determination that he has the RFC to sustain full-time work as a probation officer.70 Plaintiff notes
that the vocational expert only testified as to a probation officer’s physical class, saying nothing
about the emotional or psychological weight of the job.71 Plaintiff asserts that “an old man with
heart problems, seizure disorder, anxiety and depression, sleep disorder, and hypertension should
[not] be put in a room with drug dealers, petty criminals, domestic abusers, and other various types
of mistaken behaviorists who require the services of a probation or parole officer.”72 Plaintiff
“strenuously maintains that there is substantial evidence to support his allegations that he would
be off task too much to maintain significant gainful employment,” and “[c]onversely, he maintains

66

Id. (citing Warncke v. Harris, 619 F.2d 412, 417 (5th Cir. 1980)).

67

Id. at 8–9.

68

Id. at 10 (citing Adm. Rec. at 309).

69

Id. at 10–11.

70

Id. at 10.

71

Id. at 11.

72

Id.

12

there is not substantial evidence to support a conclusion that he has the residual functional capacity
to sustain full-time employment.”73
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 February 16, 2017.
III. Standard of Review
A.

Review of the Magistrate Judge’s Findings and Recommendation
In accordance with Local Rule 73.2, this case was referred to a 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.74 The district judge must “determine de
novo any part of the [Report and Recommendation] that has been properly objected to.”75 A district
court’s review is limited to plain error of parts of the report which are not properly objected to.76
B.

Standard of Review of Commissioner’s Final Decision on SSI and DIB Benefits
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.”77 Appellate review of the Commissioner’s denial of SSI and

73

Id.

74

Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

75

Id.

76

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).
77

42 U.S.C. § 405(g).

13

DIB benefits78 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.79
“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.”80 The Court
must review the whole record to determine if such evidence exists.81 However, the district court
cannot “reweigh the evidence in the record, try the issues de novo, or substitute its judgment for
the Commissioner’s.”82 The ALJ is entitled to make any finding that is supported by substantial
evidence, regardless of whether other conclusions are also permissible.83 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
claimant’s subjective evidence of pain and disability; and (4) his age, education, and work
history.”84

78

The relevant law and regulations governing a claim for DIB are identical to those governing a claim for
SSI. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); Hollis v. Bowen, 837 F.2d 1378, 1382 n. 3 (5th Cir.
1988).
79

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).
80

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)).
81

Singletary v. Bowen, 798 F.2d 818, 822–23 (5th Cir. 1986).

82

Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).

83

See Arkansas v. Oklahoma, 503 U.S. 91 (1992).

84

Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995).

14

IV. Law and Analysis
A.

Applicable Law to Qualification for SSI and DIB 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.”85 The Commissioner has promulgated
regulations that provide procedures for evaluating a claim and determining disability.86 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.87 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.88
In the instant case, the ALJ concluded that Plaintiff has the following severe impairments:
“cardiac dysrhythmia and syncopal episodes.”89 The ALJ also concluded that Plaintiff’s benign
prostatic hypertrophy and anxiety were non-severe impairments.90 The ALJ found that Plaintiff

85

42 U.S.C. § 423(d)(1)(A).

86

20 C.F.R. §§ 404.1501 to 404.1599 & Apps., §§ 416.901 to 416.998 (2008).

87

Id. §§ 404.1520, 416.920; Perez, 415 F.3d at 461.

88

Perez, 415 F.3d at 461; Newton, 209 F.3d at 453.

89

Adm. Rec. at 13.

90

Id. at 14.

15

did not have an impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments under the regulations.91 The ALJ found that Plaintiff had
the residual functional capacity (“RFC”) to perform light work with the following restrictions: (1)
Plaintiff can occasionally climb ramps and stairs; (2) he can never climb ladders, ropes, and
scaffolds; (3) he must avoid all exposure to workplace hazards such as moving machinery and
heights; (4) he can occasionally reach in all directions; and (5) once per quarter, on an
unpredictable basis, he must miss one day of work.92 The ALJ also found that Plaintiff was capable
of performing his past relevant work as a probation and parole officer.93 Therefore, the ALJ
determined that Plaintiff was not under a disability from January 1, 2013, through the date of the
ALJ’s decision.94 The Court may disturb that finding only if the ALJ lacked “substantial evidence”
to support it.95
B.

Whether the ALJ’s Determination that Plaintiff’s Urinary Frequency, Anxiety and
Mood Disorder, Obstructive Sleep Apnea, and Hypertension were not Severe was
Supported by Substantial Evidence
The Magistrate Judge found the ALJ’s decision that Plaintiff’s anxiety and mood disorder,

urinary frequency, and obstructive sleep apnea were not severe was based on substantial
evidence.96 The Magistrate Judge noted that Plaintiff listed the failure to find that hypertension

91

Id. at 15.

92

Id.

93

Id. at 19.

94

Id. at 20.

95

See Perez, 415 F.3d at 461

96

Rec. Doc. 23 at 21.

16

was a severe impairment as an assignment of error, but did not provide any briefing on the issue.97
Therefore, the Magistrate Judge found any argument that Plaintiff’s hypertension was a severe
impairment to be abandoned.98
“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.’”99 An
impairment is “not severe only if it is a slight abnormality having such minimal effect on the
individual that it would not be expected to interfere with the individual’s ability to work,
irrespective of age, education or work experience.”100
As an initial matter, the Court notes that Plaintiff avers that there is “substantial evidence”
in the record to support his assertion that these impairments are severe.101 However, Plaintiff
misstates the standard of review applicable here. This Court’s review is limited to determining
whether the ALJ’s determination that these conditions were not severe is supported by substantial
evidence,102 not whether the substantial evidence could support the opposite conclusion.
Therefore, with this standard of review in mind, the Court considers whether substantial evidence
supports the ALJ’s conclusion that Plaintiff’s urinary frequency, anxiety and mood disorder, sleep
apnea, and hypertension were not severe impairments.

97

Id. at 2, n.1.

98

Id.

99

Giles v. Astrue, 433 F. App’x 241, 245–46 (5th Cir. 2011) (quoting 20 C.F.R. § 404.1521).

100

Loza v. Apfel, 219 F.3d 378, 391 (5th Cir. 2000).

101

Rec. Doc. 24 at 4.

102

Perez, 415 F.3d at 461.

17

1.

Urinary Frequency

Plaintiff does not object to the Magistrate Judge’s finding that substantial evidence
supported the ALJ’s determination that Plaintiff’s urinary frequency condition was not severe.103
Specifically, the Magistrate Judge found that the medical evidence did not reflect that Plaintiff’s
urinary frequency and urgency symptoms were as severe as Plaintiff testified, and that Plaintiff
cited no objective medical evidence that substantially supported his testimony.104 Accordingly,
reviewing for plain error and finding none, the Court adopts the Magistrate Judge’s finding that
substantial evidence supported the ALJ’s determination that Plaintiff’s urinary frequency
condition was not severe.
2.

Anxiety and Mood Disorder

Plaintiff objects to the Magistrate Judge’s determination that substantial evidence
supported the ALJ’s finding that Plaintiff’s anxiety and mood disorder was not a severe
impairment.105 Accordingly, the Court reviews this issue de novo.
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).106 “The
required level of severity . . . is met when the requirements in both subsections A and B are

103

See Rec. Doc. 24.

104

Rec. Doc. 23 at 19.

105

Rec. Doc. 24 at 2.

106

20 C.F.R. § 404.1520a.

18

satisfied.”107 “Subsection B requires the claimant to show that his activities have been impaired in
at least two of four areas.”108 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).109

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.110 In determining
whether the claimant’s combination of impairments equals a particular listing, the Commissioner
must consider whether his “symptoms, signs, and laboratory findings are at least equal in severity
to the listed criteria.”111
In reaching his conclusion that Plaintiff’s anxiety and mood disorder were not severe, the
ALJ reviewed Plaintiff’s hearing testimony and the medical evidence.112 The ALJ found that
Plaintiff’s adjustment disorder was not severe, because Plaintiff had no limitations in his activities

107

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)).
108

Id.

109

20 C.F.R. § 404, Subpt. P., App. 1, § 12.04(B).

110

20 C.F.R. § 404.1520(d).

111

20 C.F.R. § 404.1529(d)(3).

112

Adm. Rec. at 14–15.

19

of daily living, mild limitations in social functioning, mild limitations in concentration,
persistence, and pace, and no episodes of decompensation.113 The ALJ relied on a psychological
consultative examination performed by Dr. Sandra Durdin on March 31, 2014.114 The ALJ noted
that Dr. Durdin assessed anxiety due to Plaintiff’s medical condition, but also noted that Plaintiff
did not have a severe mental disorder.115 Moreover, Dr. Durdin found that Plaintiff’s adaptive
functioning was average and that he was able to complete all activities of daily living.116 The ALJ
also cited to treatment notes from the VA Medical Center, which the ALJ found showed that
Plaintiff’s “mood was depressed . . . due to his medical problems and situational problems.”117 The
ALJ noted that the VA Medical records reflected that Plaintiff “had intact thought processes with
good pitch, volume and rate of speech” and “[h]is affect was full range and appropriate for the
topic.”118 Plaintiff was diagnosed with adjustment reaction, but it was determined that inpatient
admission was not appropriate.119 Because the ALJ found that Plaintiff’s medically determinable
mental impairment caused no more than mild limitation in any of the first three functional areas
and no episodes of decompensation for an extended duration, the ALJ concluded that the
impairment was not severe.120

113

Id. at 14.

114

Id.

115

Id.

116

Id.

117

Id.

118

Id.

119

Id. at 14–15.

120

Id. at 15.

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Plaintiff asserts that the opinions of his treating psychiatrist, John Kevin Jackson, M.D.,
and treating psychologist, James T. Russell, Ph.D., support the conclusion that his mental
impairments were severe.121 However, the medical records indicate that Drs. Jackson and Russell
routinely found that, although Plaintiff had some symptoms of depression and anxiety, his mental
status indicators were within normal limits or had minimal deficits.122 Plaintiff relies on a letter
written by Dr. Jackson on February 18, 2014, which states that Plaintiff would find it “very difficult
. . . to properly interact with others in a work situation.123 However, the medical records completed
by Dr. Jackson on February 18, 2014, indicate that Plaintiff reported that his medications helped
with his anxiety, he had no psychomotor agitation or depression, his mood was “iffy,” his affect
was “full,” and his judgment and insight were “fair.”124 Furthermore, when Plaintiff was
hospitalized at Tulane Medical Center from April 3 through April 9, 2014, for cardiac testing, his
treating physicians noted that he could have diazepam if he needed it for his anxiety and adjustment
disorders, but that it was a “non-issue” and “[h]e required no medication for [his anxiety] during
th[e] hospitalization.”125
The Fifth Circuit has held that “conflicts of evidence are for the Commissioner, not the
courts, to resolve.”126 Although there are instances in the medical records that show Plaintiff was

121

Rec. Doc. 24 at 3, n.1.

122

Adm. Rec. at 523–25, 549–53, 585–86, 616–18, 626–30, 634–36, 645–47.

123

Adm. Rec. at 327.

124

Adm. Rec. at 616–18.

125

Adm. Rec. at 346, 350.

126
Byrd v. Comm’r of Social Sec., 368 F. App’x 542, 543 (5th Cir. 2010) (quoting Perez v. Barnhart, 415
F.3d 457, 461 (5th Cir. 2005)).

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reporting ongoing symptoms and that Plaintiff would find it difficult to interact in a work
situation,127 the medical evidence supports the ALJ’s conclusion that Plaintiff’s mental impairment
caused no more than mild limitation in any of the first three functional areas and no episodes of
decompensation for an extended duration.128 Plaintiff argues that the ALJ should have reached the
opposite conclusion in evaluating his medical records, but he 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.129 Accordingly, the Court concludes that the ALJ’s decision that
Plaintiff’s mental impairments were not severe was based on substantial evidence.
3.

Obstructive Sleep Apnea

Plaintiff also objects to the Magistrate Judge’s determination that substantial evidence
supported the ALJ’s finding that Plaintiff’s obstructive sleep apnea was not a severe impairment.130
Accordingly, the Court reviews this issue de novo.
Plaintiff was diagnosed with mild sleep apnea during a sleep study at Tulane Medical
Center on April 9, 2014, and he received a CPAP machine on April 18, 2014.131 On July 23, 2014,
he was seen in follow-up and he reported using the machine only 48 percent of the time and using
it for more than 4 hours per day only 6 percent of the time.132 On August 11, 2014, Plaintiff

127

Adm. Rec. at 523–25, 549–53, 585–86, 616–18, 626–30, 634–36, 645–47.

128

Id.

129

Newton, 209 F.3d at 452.

130

Rec. Doc. 24 at 2.

131

Adm. Rec. at 346, 392, 557.

132

Id. at 533.

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reported that he continued to experience some sleep problems, used the CPAP machine “most
nights,” but fell asleep without it some nights.133 On August 13, 2014, Dr. Jackson prescribed
Plaintiff doxepin as needed for sleep.134
The Fifth Circuit has recognized that a Plaintiff’s failure to seek treatment or comply with
prescribed treatment is a relevant factor to consider in determining the severity of an alleged
impairment.135 The medical evidence indicates that Plaintiff was not fully complying with his sleep
apnea treatment plan. Furthermore, Plaintiff does not cite any evidence of functional limitations
caused by his sleep apnea. Accordingly, the Court concludes that the ALJ’s decision that Plaintiff’s
sleep apnea not severe was based on substantial evidence.
4.

Hypertension

The Magistrate Judge found that Plaintiff abandoned his argument that his hypertension
was a severe impairment because he did not provide any briefing on the issue.136 In his objections
to the Magistrate Judge’s recommendation, Plaintiff again lists hypertension as a severe
impairment.137 However, Plaintiff again fails to provide any briefing on this issue.
The ALJ noted that during his hospitalization on April 7, 2014, Plaintiff “was noted to be
slightly hypertensive and was taking Losartan, but given the syncope and only mild hypertension,

133

Id. at 528.

134

Id. at 525.

135

Doss v. Barnhart, 137 F. App’x 689, 690 (5th Cir. 2005) (citing Villa v. Sullivan, 895 F.2d 1019, 1024
(5th Cir.1990)).
136

Rec. Doc. 23 at 2, n.1.

137

Rec. Doc. 24 at 2.

23

the medication was held until discharge.”138 The medical evidence is consistent with the ALJ’s
description.139 Furthermore, the medical evidence indicates that Plaintiff’s hypertension was wellcontrolled when he took his blood pressure medication.140 Plaintiff does not cite any evidence of
functional limitations caused by his hypertension. Accordingly, the Court concludes that the ALJ’s
decision that Plaintiff’s hypertension was not severe was based on substantial evidence.
B.

Whether the ALJ Erred in Considering the Combined Effects of Plaintiff’s Impairments
The Magistrate Judge rejected Plaintiff’s contention that the ALJ failed to consider the

combined effects of Plaintiff’s impairments, reasoning that Plaintiff’s list of subjective complaints
and diagnoses did not establish any combined effects that the ALJ failed to address.141 Plaintiff
objects to this determination, arguing that the ALJ’s finding that Plaintiff’s impairments were
severe is relevant and prejudicial to proper consideration of how the combined effects of his
multiple impairments diminished his RFC.142 Specifically, Plaintiff argues that a finding that these
impairments are severe “should have forced the ALJ to put proper focus on how these additional
impairments combined with others to negatively affect residual functional capacity.”143
Accordingly, the Court reviews this issue de novo.

138

Adm. Rec. at 17.

139

Id. at 346.

140

Id. at 538, 613, 622, 630.

141

Rec. Doc. 23 at 22.

142

Rec. Doc. 24 at 5.

143

Id. at 6.

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As the Fifth Circuit has recognized, “[i]n determining whether a claimant’s physical or
mental impairments are of a sufficient medical severity as could be the basis of eligibility under
the law, the ALJ is required to consider the combined effects of all impairments without regard to
whether any such impairment, if considered separately, would be of sufficient severity.”144
However, the mere diagnosis of and treatment for an impairment does not establish disability.145
Plaintiff “‘must show that [he] was so functionally impaired [by his diagnosed impairments] that
[he] was precluded from engaging in any substantial gainful activity.’”146
Plaintiff argues that he was restricted from driving, which he contends alone should have
been considered a severe restriction on his ability to sustain employment as a probation officer.147
However, the ALJ considered the fact that Plaintiff was unable to drive,148 and Plaintiff has not
shown that the ability to drive would be required for him to perform his prior work. Plaintiff also
contends that the ALJ failed to consider evidence of prescription medicines.149 However, the ALJ
did consider Plaintiff’s testimony that his medications caused sleepiness, and the ALJ thoroughly
summarized the medical evidence and discussed the prescriptions Plaintiff was taking for his

144

Loza, 219 F.3d at 393 (citations omitted).

145

Bordelon v. Astrue, 281 F. App’x 418, 422 (5th Cir. 2008) (citing Hames v. Heckler, 707 F.2d 162, 165
(5th Cir. 1983)).
146

Id.

147

Rec. Doc. 24 at 6.

148

Adm. Rec. at 16.

149

Rec. Doc. 24 at 7.

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medical conditions.150 Therefore, Plaintiff has not shown that the ALJ failed to properly consider
the combined effects of his impairments.
C.

Whether the ALJ Erred in Determining the Weight to Accord to the Opinions of
Plaintiff’s Treating Physicians
The Magistrate Judge rejected Plaintiff’s argument that the ALJ failed to follow proper

legal standards in determining how much weight to give to the opinions of his treating
psychiatrist.151 Plaintiff objects, arguing that the ALJ erred in giving so much weight to the opinion
of the consultative psychologist, Dr. Durdin.152 Plaintiff notes that he received treatment from Drs.
Jackson and Russell for several years, and they were consistent in their diagnosis of adjustment
disorder.153 Therefore, Plaintiff contends that the ALJ erred in choosing “to essentially ignore the
reports and conclusions of Dr. Jackson.”154 Accordingly, the Court reviews this issue de novo.
20 C.F.R. § 404.1527(c)(2) provides that the opinions of treating sources are generally
given more weight “since these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations. . .” Therefore, although not conclusive, an
evaluation by the claimant’s treating physician should be accorded great weight.155 “A treating

150

Adm. Rec. at 16.

151

Rec. Doc. 23 at 23–25.

152

Rec. Doc. 24 at 8.

153

Id. at 8–9.

154

Id. at 10–11.

155

Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994).

26

physician’s opinion on the nature and severity of a patient’s impairment will be given controlling
weight if it is ‘well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with . . . other substantial evidence.’”156 “[T]he ALJ is free to
reject the opinion of any physician when the evidence supports a contrary conclusion.”157
However, “it is clear that the ALJ must consider all the record evidence and cannot ‘pick and
choose’ only the evidence that supports his position.”158
As discussed above, the medical records indicate that Drs. Jackson and Russell routinely
found that, although Plaintiff had some symptoms of depression and anxiety, his mental status
indicators were within normal limits or had minimal deficits.159 Plaintiff relies on a letter written
by Dr. Jackson on February 18, 2014, which states that Plaintiff would find it “very difficult . . .
to properly interact with others in a work situation.”160 However, the medical records completed
by Dr. Jackson on February 18, 2014, indicate that Plaintiff reported that his medications helped
with his anxiety, he had no psychomotor agitation or depression, his mood was “iffy,” his affect
was “full,” and his judgment and insight were “fair.”161 Furthermore, when Plaintiff was
hospitalized at Tulane Medical Center from April 3 through April 9, 2014, for cardiac testing, his
treating physicians noted that he could have diazepam if he needed it for his anxiety and adjustment

156

Martinez v. Chater, 64 F.3d 172, 176 (citing 20 C.F.R. § 404.1527(d)(2)).

157

Id.; Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987) (citation omitted).

158

Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000).

159

Adm. Rec. at 523–25, 549–53, 585–86, 616–18, 626–30, 634–36, 645–47.

160

Id. at 327.

161

Id. at 616–18.

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disorders, but that it was a “non-issue” and “[h]e required no medication for [his anxiety] during
th[e] hospitalization.”162
The Fifth Circuit has held that “[t]he ALJ ‘is entitled to determine the credibility of medical
experts as well as lay witnesses and weigh their opinions accordingly.’”163 Although there are
instances in the medical records that show Plaintiff was reporting ongoing symptoms and that
Plaintiff would find it difficult to interact in a work situation,164 the ALJ considered and rejected
Dr. Jackson’s opinion that Plaintiff’s ability to function in the work environment was severely
limited.165 Plaintiff argues that the ALJ should have reached the opposite conclusion in evaluating
his medical records, but he 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.166
Accordingly, the Court concludes that the ALJ’s decision to accord less weight to the opinion of
Plaintiff’s treating physician is supported by substantial evidence.
D.

Whether Substantial Evidence Supported the ALJ’s Determination that Plaintiff had the
RFC to Sustain Full-Time Work as a Probation Officer
Finally, the Magistrate Judge rejected Plaintiff’s argument that the ALJ failed to consider

all of the evidence in determining Plaintiff’s RFC to sustain gainful employment.167 Plaintiff

162

Adm. Rec. at 346, 350.

163

Ramirez v. Colvin, 606 F. App’x 775, 779 (5th Cir. 2015) (quoting Scott v. Heckler, 770 F.2d 482, 485
(5th Cir. 1985)).
164

Adm. Rec. at 523–25, 549–53, 585–86, 616–18, 626–30, 634–36, 645–47.

165

Id. at 19.

166

Newton, 209 F.3d at 452.

167

Rec. Doc. 23 at 25.

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objects, arguing that there is not substantial evidence to support the ALJ’s determination that he
has the RFC to sustain full-time work as a probation officer.168 Plaintiff notes that the vocational
expert only testified as to the physical requirements of work as a probation officer, saying nothing
about the emotional or psychological weight of the job.169 Accordingly, the Court reviews this
issue de novo.
As discussed supra, the ALJ’s determination that Plaintiff’s mental health conditions were
not severe is based on substantial evidence. The ALJ determined that Plaintiff’s medically
determinable impairments could reasonably be expected to cause some of the symptoms alleged
by Plaintiff, but found that Plaintiff’s statements concerning the intensity, persistence and limiting
effects of his symptoms were not entirely credible.170 Therefore, the ALJ concluded that Plaintiff
was capable of performing his past relevant work as a probation officer.171 “An ALJ has discretion
to judge a claimant’s credibility and must evaluate subjective complaints in light of the objective
medical evidence on record.”172 Credibility determinations are generally entitled to great
deference.173 The ALJ’s credibility finding was supported by substantial evidence. Accordingly,
the Court concludes that substantial evidence supported the ALJ’s determination that Plaintiff had
the RFC to sustain full-time work as a probation officer.

168

Rec. Doc. 24 at 10.

169

Id. at 11.

170

Adm. Rec. at 18.

171

Id. at 19.

172

Foster v. Astrue, 277 F. App’x 462, 465 (5th Cir. 2008) (citing Johnson v. Heckler, 767 F.2d 180, 182
(5th Cir. 1985)).
173

Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000).

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V. Conclusion
For the foregoing reasons, the Court finds that the ALJ’s decision denying Plaintiff’s
application for DBI and SSI was based on substantial evidence. 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 James Conley’s claim for
Disability Insurance Benefits and Supplemental Security Income Benefits is AFFIRMED.

9th

NEW ORLEANS, LOUISIANA, this ____ day of August, 2017.

__________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

30