Dorsey v. Social Security Administration
Filing
17
ORDER AND REASONS ADOPTING 14 REPORT AND RECOMMENDATIONS, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 01/30/2019.(am)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILSON DORSEY JR.
CIVIL ACTION
VERSUS
NO. 17-9862
SOCIAL SECURITY ADMINISTRATION
SECTION: “B”(3)
ORDER AND REASONS
Before the court are Plaintiff’s objections (Rec. Doc. 15) to
the Magistrate Judge’s Report and Recommendation (Rec. Doc. 14)
denying
Plaintiff’s
motion
for
summary
judgment
and
granting
Defendant’s motion for summary judgment. For the reasons discussed
below,
IT IS ORDERED that the objections are OVERRULED and the
Magistrate Judge’s Report and Recommendation are ADOPTED as the
opinion of the Court; Plaintiff’s motion for summary judgment is
DENIED; Defendant’s cross-motion for summary judgment is GRANTED;
and the captioned action is hereby DISMISSED. See Rec. Docs. 10,
13.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On August 11, 2010, Plaintiff Wilson Dorsey, Jr. filed an
application for disability insurance benefits (DIB) alleging a
disability since August 10, 2010. See Rec. Doc. 8-5 at 187-90. On
April 13, 2011, Administrative Law Judge (ALJ) Voisin determined
that Plaintiff had severe impairments, disorders of the back, and
1
hypertension, which limited him to a residual functional capacity.
See Rec. Doc. 8-3 at 91, 93. Plaintiff received ongoing medical
treatment while he received DIB.
On June 11, 2014, Defendant performed a continuing disability
review
and
found
that
Plaintiff
had
experienced
medical
improvement related to his ability to work. See id. at 95-97.
Defendant found that Plaintiff was no longer disabled as of June
11, 2014. See id. On September 15, 2016, ALJ Henderson denied
Plaintiff DIB and upheld defendant’s cessation decision. See Rec.
Doc.
8-2
at
14-24.
Plaintiff
sought
review
from
the
Appeals
Council, but the Appeals Council denied Plaintiff’s request. See
id. at 1-6. Plaintiff then filed the instant civil action, in which
all parties subsequently filed cross motions for summary judgment.
The motions, administrative record, and Magistrate’s report and
recommendation have been reviewed along with applicable law and
regulations.
LAW AND ANALYSIS
Summary
judgment
is
appropriate
when
“the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). A genuine
issue of material fact exists if the evidence would allow a
2
reasonable jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When
the
movant
bears
the
burden
of
proof,
it
must
“demonstrate the absence of a genuine issue of material fact” using
competent summary judgment evidence. Celotex, 477 U.S. at 323. But
“where the non-movant bears the burden of proof at trial, the
movant may merely point to an absence of evidence.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). When the
movant meets its burden, the burden shifts to the non-movant, who
must show by “competent summary judgment evidence” that there is
a genuine issue of material fact. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16
F.3d at 618.
Under Local Rule 73.2, a case seeking judicial review of the
Social Security Administration’s decision is to be 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. The
district judge must determine de novo any part of the Report and
Recommendation that has been properly objected to. The District
Court’s review is limited to plain error of parts of the report
which are not properly objected to.” Hohmann v. SSA, 2018 U.S.
Dist. LEXIS 139426 *1, *8 (E.D. La. Aug. 16, 2018).
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A district court, when reviewing a disability claim, is
limited to determining whether there is substantial evidence in
the record to support the final decision of the Commissioner as
trier of fact, and whether the Commissioner applied the appropriate
legal standards to evaluate the evidence. Carey v. Apfel, 230 F.3d
131 (5th Cir. 2000) (citing Brown v. Apfel, 192 F.3d 492, 496 (5th
Cir. 1999)). If the Court finds substantial evidence to support
the
decision,
then
it
must
uphold
the
decision.
Substantial
evidence is that evidence which a “reasonable mind might accept as
adequate to support a conclusion.” Carey, 230 F.3d at 135 (quoting
Villa v. Sullivan, 895 F.2d 1019, 1021-22 (5th Cir. 1990)). It is
more than a scintilla but may be less than a preponderance. Id.
The court considers four elements of proof when determining whether
there is substantial evidence of disability: (1) objective medical
facts,
(2)
physicians,
diagnoses
(3)
and
claimant’s
opinions
of
treating
and
subjective
evidence
of
examining
pain
and
disability, and (4) claimant’s age, education, and work history.
Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995).
While the court must review the whole record to determine if
substantial evidence exists, it cannot reweigh the evidence in the
record, try the issues de novo, or substitute its judgment for the
Commissioner’s,
even
if
the
evidence
weighs
against
the
Commissioner’s decision. The administrative law judge can make any
4
findings that are supported by substantial evidence. Brown, 192
F.3d at 496; Hohmann, 2018 U.S. Dist. LEXIS 139426 at *9.
“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 12
months.” Hohmann, 2018 U.S. Dist. LEXIS 139426 at *9-10 (internal
quotation marks omitted). To determine if an impairment prevents
a person from engaging in substantial gainful activity, a fivestep
analysis
is
employed.
First,
the
claimant
must
not
be
presently working at any substantial gainful activity. Second, the
claimant must have an impairment or combination of impairments
that are severe. Third, the claimant’s impairment must meet or
equal an impairment listed in the appendix to the regulations.
Fourth, the impairment must prevent the claimant from returning to
his past relevant work. Fifth, the impairment must prevent the
claimant from doing any relevant work, considering the claimant’s
residual
functional
capacity,
age,
education
and
past
work
experience. The claimant has the burden of proof under the first
four parts of the analysis to show that he or she is disabled. If
the
claimant
is
successful,
then
the
burden
shifts
to
the
Commissioner at step five to show that the claimant is capable of
5
performing other gainful employment. Shave v. Apfel, 238 F.3d 592,
594 (5th Cir. 2001); Hohmann, 2018 U.S. Dist. LEXIS 139426 at *10.
In the instant case, the ALJ found that the plaintiff did not
have an impairment or combination of impairments which met or
medically equaled the severity of an impairment listed in the
appendix to the regulations. Rec. Doc. 8-2 at 16. The ALJ concluded
that Plaintiff had lumbar area stenosis. However, the ALJ found
that Plaintiff “never had evidence of nerve root compression
characterized
restriction
in
by
neuro-anatomic
range
of
distribution
motion,
motor
loss
of
with
pain,
severe
atrophy
and
associated muscle weakness or sensory or reflex loss.” Rec. Doc.
8-2 at 18. Furthermore, the ALJ concluded that Plaintiff maintains
the ability to walk without use of an assistive device and his
gait/station are not impaired. Id. The ALJ found that as of June
11, 2014, the plaintiff was able to perform a significant number
of jobs in the national economy, such as janitor, usher, or
security guard. Id. at 23. Therefore, the ALJ determined that
Plaintiff was not disabled from June 11, 2014 through the date of
the ALJ’s decision. Id. at 24.
Plaintiff argues that the ALJ erred in attributing medical
notes and statements to a nurse practitioner and not the doctor.
In addition, Plaintiff argues that there is no substantial evidence
in
the
record
to
impairments/conditions
support
a
improved
6
finding
medically.
that
While
Plaintiff’s
the
ALJ
harmlessly attributed some of Plaintiff’s medical notes to the
nurse practitioner instead of Doctor Ellis, ALJ was entitled to
consider the medical notes and statements as they were of evidence
on the issue of plaintiff’s ability to function at that time. “The
Fifth Circuit has held that the ALJ is entitled to determine the
credibility of medical experts as well as well as lay witnesses
and weigh their opinions accordingly.” Ramirez v. Colvin, 606 F.
App’x 775, 779 (5th Cir. 2015). “The ALJ is free to reject the
opinion of any physician when the evidence supports a contrary
conclusion.” Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987).
“It is clear that the ALJ must consider all the record
evidence and cannot pick and choose only the evidence that supports
his position.” Hohmann, 2018 U.S. Dist. LEXIS 139426 at *13. In
addition to the medical notes, the ALJ considered other evidence
in the record. The ALJ found that Plaintiff is no longer actively
under the care of a neurosurgeon. Rec. Doc. 8-2 at 19. In addition,
the record shows that on March 11, 2014, Plaintiff reported to the
state disability examiner that his day was not impaired by his
conditions. Id. at 20. On June 15, 2015, the claimant reported to
Dr. Lesser that he was swimming in his pool which helped his lower
extremity pain and back pain. He also reported that he was looking
for light work. Id. at 21.
The ALJ noted some limitations such as occasional postural
restrictions
on
climbing
7
ramps/stairs,
climbing
ladders/ropes/scaffolds, balancing, stooping, kneeling, crouching
and crawling, and occasional overhead reaching with left arm. Id.
at 19. However, despite these limitations, the ALJ found that
Plaintiff’s subjective statements are not credible in considering
all the evidence. Id. at 20.
The plaintiff claimed that the
medicine was causing him trouble to concentrate and that he was
forgetful. Id. at 21. However, Plaintiff never saw a doctor for
this and conceded that he did not have any mental health issues.
Id. The ALJ found that no treating physicians have ever recommended
that claimant was either unable to work or disabled. Id. at 22. In
addition to Plaintiff’s statements that the conditions did not
impair his day, statements by medical examiners and doctors,
Plaintiff’s MRI showed nearly full range of motion of the spine.
Id. Therefore, the ALJ’s finding is supported by substantial
evidence. Testimony from the Plaintiff and doctors and medical
evidence support a finding that the ALJ had substantial evidence
in determining that Plaintiff was able to perform light work due
to his noted improved medical condition.
New Orleans, Louisiana, this 30th day of January, 2019.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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