Gunn v. Astrue
Filing
16
MEMORANDUM OPINION. Signed by S. Allan Alexander on 11/7/12. (bnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
TYWANA G. GUNN
PLAINTIFF
vs.
CIVIL ACTION NO. 1:12CV043-SAA
MICHAEL ASTRUE,
Commissioner of Social Security
DEFENDANT
MEMORANDUM OPINION
This case involves an application under 42 U.S.C. § 405(g) for judicial review of the
decision of the Commissioner of Social Security denying the application of plaintiff Tywana G.
Gunn for a period of disability (POD) and disability insurance benefits (DIB) under Sections
216(I) and 223 of the Social Security Act and for supplemental security income (SSI) payments
under Section 1614(a)(3) of the Act. Plaintiff filed an application for supplemental security
income (“SSI”) on May 4, 2009 alleging disability beginning on April 14, 2009. Docket 9, p.
140-45, 165. Plaintiff’s claim was denied initially on August 14, 2009, and upon reconsideration
on November 6, 2009. Id. at 61-68. She filed a request for hearing and was represented by
counsel at the hearing held on January 12, 2011. Id. at 69, 32-48. The Administrative Law
Judge (ALJ) issued an unfavorable decision on March 15, 2011, and on December 27, 2011, the
Appeals Council denied plaintiff’s request for a review. Id. at 6-8. Plaintiff timely filed the
instant appeal from the ALJ’s most recent decision, and it is now ripe for review.
Because both parties have consented to have a magistrate judge conduct all the
proceedings in this case as provided in 28 U.S.C. § 636(c), the undersigned has the authority to
issue this opinion and the accompanying final judgment.
I. FACTS
Plaintiff was born on September 9, 1967 and has a twelfth grade education. Docket # 9,
p. 34,142. She was 43 years old at the time of the ALJ’s decision. Plaintiff’s past relevant work
was as a nurse’s assistant and a housekeeper. Id. at 157. She previously applied for SSI, but was
denied on February April 16, 2009. Id. at 49-61. Plaintiff contends that she became disabled
before her application for SSI as a result of depression and “pain all over her body.” Id. at 160.
The ALJ determined that plaintiff suffered from “severe” impairments including
“undifferentiated rheumatism, migraine headaches and depression” (Docket #9, p. 17), but that
these impairments did not meet or equal a listed impairment in 20 C.F.R. Part 404, Subpart P,
App. 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 4165.926). Id. at
13. Based upon testimony by the vocational expert [VE] at the hearing and upon consideration
of the record as a whole, the ALJ determined that plaintiff retains the Residual Functional
Capacity (RFC) to
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a). The claimant can lift and carry ten pounds
occasionally and less than ten pounds frequently. She can stand
and walk a total of two hours out of an eight-hour work day. She
can sit six hours of an eight-hour work day. . . .
Docket 9, p. 20. Upon further analysis under applicable rulings and regulations, the ALJ
determined that plaintiff was less than fully credible in that her claimed symptoms, stated
limitations and subjective complaints – particularly concerning the intensity, persistence and
limiting effects of these symptoms – are not credible. Id. at 24. After evaluating all of the
evidence in the record, including testimony of both plaintiff and a VE at the hearing, the ALJ
held that plaintiff could perform the job of an escort vehicle driver, napper tender, laminator,
2
hand mounter and a fishing lure assembler. Id. As a result, the ALJ concluded that plaintiff is
not disabled under the Social Security Act. Id.
Plaintiff claims that the ALJ erred because he did not properly evaluate plaintiff’s
credibility, did not properly question the VE based upon the RFC and did not properly evaluate
the opinions of Dr. Hardy. Docket 13.
II. STANDARD OF REVIEW
In determining disability, the Commissioner, through the ALJ, works through a five-step
sequential evaluation process.1 The burden rests upon plaintiff throughout the first four steps of
this five-step process to prove disability, and if plaintiff is successful in sustaining her burden at
each of the first four levels, then the burden shifts to the Commissioner at step five.2 First,
plaintiff must prove she is not currently engaged in substantial gainful activity.3 Second,
plaintiff must prove her impairment is “severe” in that it “significantly limits [her] physical or
mental ability to do basic work activities . . . .”4 At step three the ALJ must conclude plaintiff is
disabled if she proves that her impairments meet or are medically equivalent to one of the
impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1, §§ 1.00-114.09 (2010).5 If plaintiff
does not meet this burden, at step four she must prove that she is incapable of meeting the
1
See 20 C.F.R. §§ 404.1520, 416.920 (2010).
2
Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999).
3
20 C.F.R. §§ 404.1520(b), 416.920(b) (2010).
4
20 C.F.R. §§ 404.1520(c), 416.920(c) (2010).
5
20 C.F.R. §§ 404.1520(d), 416.920(d) (2010). If a claimant’s impairment meets certain
criteria, that claimant’s impairments are “severe enough to prevent a person from doing any
gainful activity.” 20 C.F.R. § 416.925 (2003).
3
physical and mental demands of her past relevant work.6 At step five, the burden shifts to the
Commissioner to prove, considering plaintiff’s residual functional capacity, age, education and
past work experience, that she is capable of performing other work.7 If the Commissioner proves
other work exists which plaintiff can perform, plaintiff is given the chance to prove that she
cannot, in fact, perform that work.8
The court considers on appeal whether the Commissioner’s final decision is supported by
substantial evidence and whether the Commissioner used the correct legal standard. Crowley v.
Apfel, 197 F.3d 194, 196 (5th Cir. 1999); citing Austin v. Shalala, 994 F.2d 1170 (5th Cir. 1993);
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). The court has the responsibility to
scrutinize the entire record to determine whether the ALJ’s decision was supported by
substantial evidence and whether the proper legal standards were applied in reviewing the claim.
Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983). The court has limited power of review
and may not reweigh the evidence or substitute its judgment for that of the Commissioner,9 even
if it finds that the evidence leans against the Commissioner’s decision.10 The Fifth Circuit has
held that 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.”
Crowley v. Apfel, 197 F.3d 194, 197 (5th Cir. 1999) (citation omitted). Conflicts in the evidence
6
20 C.F.R. §§ 404.1520(e), 416.920(e) (2010).
7
20 C.F.R §§ 404.1520(g), 416.920(g) (2010).
8
Muse, 925 F.2d at 789.
9
Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988).
10
Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); Harrell v. Bowen, 862 F.2d 471,
475 (5 Cir. 1988).
th
4
are for the Commissioner to decide, and if there is substantial evidence to support the decision, it
must be affirmed even if there is evidence on the other side. Selders v. Sullivan, 914 F.2d 614,
617 (5th Cir. 1990). The court’s inquiry is whether the record, as a whole, provides sufficient
evidence that would allow a reasonable mind to accept the conclusions of the ALJ. Richardson
v. Perales, 402 U.S. 389, 401 (1971). “If supported by substantial evidence, the decision of the
[Commissioner] is conclusive and must be affirmed.” Paul v. Shalala, 29 F.3d 208, 210 (5th Cir.
1994), citing Richardson v. Perales, 402 U.S. 389, 390, 28 L.Ed.2d 842 (1971).
III. DISCUSSION
A. Whether the ALJ properly considered the plaintiff’s credibility.
Plaintiff contends that the ALJ improperly afforded little weight to her allegations and
complaints. Docket 13, p. 13. Specifically, the plaintiff asserts that the ALJ improperly
considered her “physical appearance during the hearing in the portion of his decision where her
subjective complaints are discussed.” Id. The Commissioner responds that the ALJ properly
noted plaintiff’s appearance and demeanor at the hearing and considered it in conjunction with
other factors in evaluating the plaintiff’s credibility. Docket 14, p. 8. In his opinion, the ALJ
noted that he
observed that the claimant portrayed little evidence of pain or
discomfort while testifying at the hearing. While the hearing was
short-lived and cannot be considered a conclusive indicator of the
claimant’s overall level of pain on a day-to-day basis, the apparent
lack of discomfort during the hearing is given some slight weight
in reaching the conclusion regarding the credibility of the
claimant’s allegations and the claimant’s residual functional
capacity. . . . It is emphasized that this observation is only one
among many factors being relied on in reaching a conclusion
regarding the credibility of the claimant’s allegations and the
claimant’s residual functional capacity.
5
Docket 9, p. 24. The Fifth Circuit has routinely held that “it is not reversible error for an ALJ to
consider demeanor as one of the factors in evaluating a claimant’s credibility.” Taylor v. Apfel,
172 F.3d 870 (5th Cir. 1999), citing Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990).
In evaluating plaintiff’s credibility, the ALJ considered the medical records and opinions
of at least six physicians, third-party function reports submitted by plaintiff’s daughter and a
friend, Willie Swain, and plaintiff’s own testimony. The ALJ thoroughly analyzed the plaintiff’s
medical records, as well as the records of examinations requested by Social Security. The
plaintiff’s appearance and demeanor was only one of the many factors considered by the ALJ in
evaluating the plaintiff’s credibility. The ALJ properly used his discretion in weighing the
credibility of plaintiff’s complaints and his ultimate determination was based upon the record as
a whole. Because the record amply supports the ALJ’s conclusion, this argument is without
merit.
Plaintiff also asserts that the ALJ failed to properly consider the side effects of her
medications on her ability to work [Docket 13, p. 15], arguing that this is further evidence of the
ALJ’s failure to conduct a proper credibility evaluation. Id. According to the Commissioner,
there is no “objective documentation that plaintiff experienced medication side effects that
would limit her functional abilities . . .” Docket 14, p. 9. Interestingly, the only record evidence
plaintiff cites to support her assertion that her medication affects her ability to work is her own
testimony and Dr. Lane’s record from his 2009 consultative examination; in that report, he
remarks that plaintiff appeared to be “heavily sedated” and “sluggish.” However, plaintiff
herself admits that at the time she was examined by Dr. Lane, she was not taking any of the
6
prescription medications that she was taking at the time of the hearing.11 Docket 13, p. 16.
There is no record evidence that plaintiff has ever reported to her treating or even any examining
physicians that she experienced side effects from her medications. The only mention ever made
concerning plaintiff’s alleged impairments caused by her medication is her own testimony at the
hearing that the medications she takes cause drowsiness, sleepiness and nausea. Docket 9, p. 31.
The ALJ properly considered plaintiff’s complaints regarding the side effects of her medication
in conjunction with the medical evidence in evaluating both plaintiff’s credibility and her RFC.
See Richmond v. Shalala, 23 F.3d 1441, 1443 (8th Cir. 1994) (claimed side-effects of medication
never discussed with physician nor change of medication requested as basis for discounting
testimony). Therefore, this argument is without merit.
B. Whether the ALJ properly relied upon testimony of the VE.
Plaintiff contends that the VE’s testimony is not consistent with the full range of
limitations contained in the ALJ’s hypothetical and conflicts with the DOT. Docket 13, p. 18.
In particular, plaintiff asserts that even though the ALJ’s hypothetical excluded jobs that require
“attention to detail,” every job identified by the VE requires attention to detail. Id. The VE only
discussed jobs that are “consistent with a limitation to simple, routine, repetitive tasks,” goes the
argument, but that discussion does not necessarily include jobs that do not require attention to
detail. Id. According to the Commissioner, however, the VE’s understanding of the ALJ’s
hypothetical is consistent with the definitions of skill levels used by the Social Security
11
Plaintiff submits the unconvincing theory that this condition might have been
attributable to other medications, such as Tylenol PM, and in support offers a note from
consultative examiner Dr. Howell to the effect that plaintiff told him on September 9, 2009 that
she took Tylenol PM to help her sleep, but it did not help. Docket 9, p. 366.
7
Administration, and this argument simply posits alternative definitions for well-established
classifications of jobs instead of legal authority necessary to support her argument. Docket 14,
pp. 10-12.
The Fifth Circuit has routinely found that “[t]he value of a vocational expert is that he is
familiar with the specific requirements of a particular occupation, including working conditions
and the attributes and skills needed.” Fields v. Brown, 805 F.2d 1168, 1170 (5th Cir. 1986). “A
vocational expert is able to compare all the unique requirements of a specified job with the
particular ailments a claimant suffers in order to reach a reasoned conclusion whether the
claimant can perform the specific job.” Id. In articulating the “middle ground” rule, the Fifth
Circuit has held that “[t]o the extent that there is any implied or indirect conflict between the
vocational expert’s testimony and the DOT . . . we agree with the majority of circuits that the
ALJ may rely upon the vocational expert’s testimony provided that the record reflects an
adequate basis for doing so.” Carey v. Apfel, 230 F.3d 131, 146 (5th Cir. 2000). As further
explained by the Circuit,
all kinds of implicit conflicts are possible and the categorical requirements listed
in the DOT do not and cannot satisfactorily answer every such situation.
Moreover, claimants should not be permitted to scan the record for implied or
unexplained conflicts between the specific testimony of an expert witness and the
voluminous provisions of the DOT, and then present that conflict as reversible
error, when the conflict was not deemed sufficient to merit adversarial
development at the administrative hearing.
Id.
The court agrees with the Commissioner. Plaintiff has attempted to create an issue by
simply rephrasing the terms routinely utilized by the Social Security Administration, ALJs and
VEs that have specific meaning. Plaintiff has provided no legal basis for these alternative
8
meanings, and her counsel did not take the opportunity provided at the hearing to question the
VE concerning whether the proffered jobs required attention to detail. The undersigned is not
persuaded that any conflict exists between the hypothetical, the VE testimony and the DOT
regulation, but if it does, it is not the direct and obvious type asserted by plaintiff, but instead it
is an implied or indirect conflict. According to the Fifth Circuit, when the conflict between the
VE’s testimony and the DOT exists that is tangential, implied or indirect, as is the case here, and
the conflict was not addressed at the administrative hearing, the VE’s testimony may be accepted
and relied upon by the ALJ without resolving the later-proffered conflict provided the record
reflects an adequate basis for doing so. Cary v. Apfel, 230 F.3d 131, 146 (5th Cir. 2000).
Plaintiff’s counsel was given the opportunity at the administrative hearing to object and question
the VE concerning these alleged limitations, but chose not to do so. There is nothing in
plaintiff’s record to indicate that the VE’s testimony that plaintiff can perform the jobs identified
is incorrect or contradictory of the DOT. Therefore, the ALJ’s reliance upon the VE’s testimony
was proper, and the ALJ’s decision on this issue is supported by substantial evidence.
C. Whether the ALJ properly considered the
opinions of plaintiff’s treating physician.
Plaintiff contends on appeal that the ALJ’s ultimate opinion is not supported by
substantial evidence because he did not afford proper weight to her treating physician’s opinions
and did not perform the proper six-part analysis for discounting the treating physician’s opinions.
Docket 13, p. 22. Dr. Hardy submitted a medical source statement stating that plaintiff
experienced marked limitations in her ability to interact with the public and co-workers and in
her ability to perform daily activities. The ALJ noted that Dr. Hardy “found that the claimant
experienced mostly marked restrictions in all her abilities. . . .” and that “her mood, low
9
concentration, poor memory, isolation and hallucinations make her a poor candidate for
employment.” Docket 9, p. 21.
The Secretary responds, and this court agrees, that the ALJ properly discounted Dr.
Hardy’s opinions because they were not supported by objective, clinical evidence. For an ALJ
to properly afford lesser weight to the treating physician’s medical opinions, he must “perform a
detailed analysis of the treating physician’s views under the criteria set forth in 20 C.F.R. §
404.1527(d)(2).” Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000). Because the ALJ did not
follow these criteria, says plaintiff, his refusal to afford controlling weight to Dr. Hardy’s
opinions was error as a matter of law. The Commissioner responds that Newton does not apply
to this case because the record provides “good cause” for the ALJ’s finding that the treating
physician’s opinion was not entitled to controlling weight and because there is substantial
competing evidence from multiple examining physicians of record. Docket 14, p. 13-15. The
Commissioner asserts that where there is competing evidence from multiple examining
physicians of record, as is the case here, the ALJ is not required to perform the full Newton
analysis before discounting the opinions of the treating physician. Id., p. 15. The court
concludes that in light of the objective evidence, the opinions from consultative and other
treating physicians and the plaintiff’s testimony, the ALJ had sufficient evidence to determine
plaintiff’s impairments and to make the ultimate decision regarding disability.
Reading the record as a whole, the court concludes that the ALJ’s opinion is supported by
substantial evidence and should be affirmed. It is clear that the ALJ reviewed the entire record,
properly identified the relevant listed impairments, fully discussed the evidence that was
contained in the record and concluded that the balance tipped toward functional ability in
10
determining whether the plaintiff’s impairments met or equaled a listed impairment. The ALJ
performed a thorough analysis of the plaintiff’s impairments and clearly considered the treatment
records of the plaintiff’s treating physicians Dr. Hardy and others at Community Counseling
Service, as well as the consultative exams performed at the ALJ’s request. The plaintiff did not
provide credible evidence that her alleged impairments affect her ability to work, and the ALJ
adequately explained his reasons for questioning the plaintiff’s credibility. Therefore, the
undersigned holds that the decision of the Commissioner should be affirmed.
IV. CONCLUSION
After diligent review, the court holds that the ALJ’s decision was supported by
substantial evidence and must be affirmed. A final judgment in accordance with this
memorandum opinion will issue this day.
SO ORDERED, this, the 7th of November, 2012.
/s/ S. Allan Alexander
UNITED STATES MAGISTRATE JUDGE
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?