Fosberg v. Colvin

Filing 17

MEMORANDUM OPINION. Signed by Magistrate Judge S. Allan Alexander on 5/11/15. (mhf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION

CRISTIN C. FOSBERG,

PLAINTIFF

vs.

CIVIL ACTION NO. 1:14-CV-134-SAA

COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

MEMORANDUM OPINION
Plaintiff Cristin C. Fosberg has applied for judicial review under 42 U.S.C. § 405(g) of
the Commissioner of Social Security’s decision denying her application for a period of disability
(POD) and disability insurance benefits (DIB) under Title II of the Social Security Act. Docket
9. Plaintiff filed an application for DIB on August 31, 2012, alleging disability beginning June 9,
2012. Docket 9, p. 165-66. The agency administratively denied her application initially and
upon reconsideration. Docket 9, pp. 106, 113-16. She then requested a hearing, which an
Administrative Law Judge (“ALJ”) conducted on March 11, 2014. Docket 9, p. 49-79. The ALJ
issued an unfavorable decision on April 25, 2014 (Docket 9, p. 26-48), and the Appeals Council
denied plaintiff’s request for a review on July 7, 2014, Docket 9, p. 7-9. Plaintiff timely filed the
instant appeal from the decision, and it is now ripe for review.
Because both parties have consented to have a magistrate judge conduct all 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, currently 31 years old, was born September 7, 1983. Docket 9, p. 56. She
completed high school and one semester of college. Docket 9, p. 57. She was previously
employed as a receptionist, a secretary, a day care worker, and various other clerk-type positions
including an accounting clerk. Docket 9, p. 77, 189. Plaintiff contends that she is unable to
work due to diverticulitis, depression, endometriosis, pseudoseizures, interstitial cystitis,
hypothyroidism, and migraine headaches. Docket 9, p. 109.
In evaluating plaintiff’s disability claim, the ALJ proceeded through the Social Security
Administration’s five-step sequential evaluation process. 20 C.F.R. 404.1520(a); see also
Docket 9, p. 29-41. The ALJ determined that plaintiff suffered from “severe” impairments of
“migraines, pseudoseizures, cystitis, diverticulitis and gastrointestinal disorders, depression and
mood disorders, and anxiety-related disorders” (Docket 9, p. 31) but ultimately found that her
impairments did not meet or equal a listed impairment in 20 C.F.R. Part 404, Subpart P, App. 1
(20 C.F.R. 404.1520(d), 404.1525 and 404.1526). Docket 9, p. 32.
Based upon testimony by a vocational expert (“VE”) at the hearing and after considering
the record as a whole, the ALJ determined that plaintiff retains the Residual Functional Capacity
(“RFC”) to, “lift, carry, push, or pull 20 lbs. occasionally and 10 lbs. frequently and to stand, sit,
or walk for 6 hours of an 8-hour workday [and] can have occasional interaction with the public.”
Docket 9, p. 34. Upon further analysis under applicable rulings and regulations, the ALJ
determined that the plaintiff was less than fully credible in describing the intensity, persistence
and limiting effects of her claimed symptoms, limitations and subjective complaints. Docket 9,
p. 36-40. In reaching his ultimate conclusion, the ALJ evaluated all of the evidence in the record,
including hearing testimony from both the plaintiff and the VE, and held that plaintiff could
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perform her previous job as an accounting clerk. Docket 9, p. 40. As a result, the ALJ
concluded that plaintiff is not disabled under the Social Security Act. Docket 9, p. 40-41.
On appeal, the plaintiff argues the ALJ erred in two ways: (i) by substituting his own
opinion for that of medical professionals in determining the severity of plaintiff’s various
impairments, and (ii) by failing to accord proper weight to a consulting physician’s opinion,
which then led to an improper assessment of plaintiff’s RFC. Docket 13.
II. EVALUATION PROCESS
In determining disability, the Commissioner, through the ALJ, works through a five-step
sequential evaluation process. See 20 C.F.R. § 404.1520. The burden to prove disability rests
upon plaintiff throughout the first four steps of this process, and if plaintiff is successful in
sustaining her burden at each of the first four levels, the burden then shifts to the Commissioner
at step five. See Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999). First, the plaintiff must
prove she is not currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b).
Second, the plaintiff must prove her impairment(s) are “severe” in that they “significantly limit[]
[her] physical or mental ability to do basic work activities . . ..” 20 C.F.R. § 404.1520(c). At
step three the ALJ must conclude that the 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). 20 C.F.R. § 404.1520(d). If the plaintiff does not meet this
burden, at step four she must prove she is incapable of meeting the physical and mental demands
of her past relevant work. 20 C.F.R. § 404.1520(e). Finally, 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. 20 C.F.R § 404.1520(g). If
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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. See Muse v. Sullivan, 925 F.2d 785,
789 (5th Cir. 1991).
III. STANDARD OF REVIEW
On appeal the court must consider whether the Commissioner’s final decision is
supported by substantial evidence and whether the correct legal standards were used. Crowley,
197 F.3d at 196, citing Austin v. Shalala, 994 F.2d 1170 (5th Cir. 1993); Villa v. Sullivan, 895
F.2d 1019, 1021 (5th Cir. 1990). In making that determination, the court has the responsibility to
scrutinize the entire record. 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, Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988), even if it finds the
evidence leans against the Commissioner’s decision. See Bowling v. Shalala, 36 F.3d 431, 434
(5th Cir. 1994); see also Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988).
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, 197 F.3d at 197 (citation omitted). Conflicts in the evidence
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 ALJ’s conclusions. See Richardson v.
Perales, 402 U.S. 389, 401 (1971); see also Crowley, 197 F.3d at 197. “If supported by
substantial evidence, the decision of the [Commissioner] is conclusive and must be affirmed.”
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Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994), citing Richardson, 402 U.S. at 390.
IV. DISCUSSION
The plaintiff asserts that the ALJ erred in two ways: (i) by substituting his own opinion
for that of medical professionals in determining the severity of plaintiff’s various impairments
and (ii) by failing to accord proper weight to a consulting physician’s opinion, which then led to
an improper assessment of plaintiff’s RFC. Docket 13. The court holds that the ALJ decision
was substantially justified and applied the proper legal standards.
A. Whether the ALJ properly considered plaintiff’s impairments
The plaintiff asserts that errors made by the ALJ at step two in the evaluation process
caused the remainder of the sequential evaluation process to be defective and unsupported by
substantial evidence. Docket 13, p. 4-11. More specifically, the plaintiff contends the ALJ
wrongly substituted his own opinion for that of medical professionals in determining the severity
of the plaintiff’s medical impairments. Docket 13, 4-11. After an exhaustive and thorough
review of the entire record, which includes approximately 1,500 pages of medical records, it is
clear the ALJ did not err in reaching the ultimate disability determination.
The ALJ thoroughly considered the plaintiff’s case as he worked through the sequential
evaluation process. After determining the plaintiff suffered from several severe impairments, the
ALJ found that these impairments did not meet or medically equal a listing. Docket 9, p. 29-41.
He then found that, based upon her RFC, the plaintiff could return to previous work she had
performed. Docket 9, p. 29-41. In making this determination, the ALJ thoroughly analyzed the
plaintiff’s many claimed impairments in light of her subjective testimony and the entirety of the
medical treatment evidence provided in the record. Docket 9, p. 29-41. Based upon that
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examination of the evidence, the ALJ found that the claimant’s statements concerning the
intensity, persistence and limiting effects of the plaintiff’s symptoms were not entirely credible.
Docket 9, p. 36-40.
The Fifth Circuit has routinely held that the ALJ is in the best position to assess a
claimant’s credibility. Falco v. Shalala, 27 F.3d 160, 164 (5th Cir. 1994); see also Loya v.
Heckler, 707 F.2d 211, 215 (5th Cir. 1983); see also Villa v. Sullivan, 895 F.2d 1019, 1024 (5th
Cir. 1990). Here, the ALJ relied on inconsistencies peppered throughout the medical records to
substantiate his credibility determination. Docket 9, pp. 36-40. These inconsistencies highlight
that the authenticity of the plaintiff’s subjective allegations of pain as well as the severity of her
impairments have often been questioned by medical professionals throughout her medical
history. Docket 9, p. 36-40.
For example, the ALJ noted in his opinion an instance where the claimant had undergone
24-hour video electroencephalogram (EEG) monitoring. Docket 9, p. 36 (Exhibit 2F). During
that monitoring, the plaintiff exhibited two “spells,” or seizure-like incidents. However, doctors
noted in the plaintiff’s records that in neither incident did any concurrent electrographic changes
occur. Docket 9, p. 36 (citing Exhibit 2F). Although the plaintiff challenges the ALJ’s reliance
upon this fact to substantiate a lack of credibility, this example is hardly the only evidence upon
which the ALJ relied to make his determination, nor is it the only medical evidence that
exhibited inconsistencies. In fact, the medical records are replete with evidence of situations
where medical professionals questioned the plaintiff’s credibility or reliability because objective
medical test results revealed nothing abnormal despite the plaintiff’s claims otherwise. Docket 9,
p. 36 (citing Exhibits 12F, 14F, 18F, 19F, 39F, 40F, 42 F, and 44F).
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The ALJ also found the plaintiff exhibited a “tendency to misrepresent her symptoms or
make statements that lack in veracity.” Docket 9, p. 36-37. The ALJ noted instances from the
records when treating doctors observed the claimant “faking anaphylactic reactions” (Docket 9,
Exhibit 1F), having episodes of respiratory distress during which her “oxygen saturation levels
remain[ed] at 100 percent during” the event (Docket 9, Exhibit 3F), and making untrue
statements to physicians about other doctors referring her to the emergency room when they had
not actually done so and then demanding to be admitted to the hospital, Docket 9, Exhibit 22F.
Although the plaintiff seems to rely on the substantial volume of medical records in this
case as facial proof of disability, the ALJ instead found that a full and comprehensive analysis of
these medical records actually detracted from plaintiff’s credibility. Docket 9, p. 37. The ALJ
found that those records highlighted the possibility that the claimant has consistently been
exhibiting drug-seeking behavior rather than suffering from an actual disability. Docket 9, p. 37.
To substantiate this observation, the ALJ relied on the voluminous medical record to confirm that
medical professionals throughout the claimant’s treatment history have questioned her credibility
and documented their suspicions of her behavior. Docket 9, p. 37. For example, the ALJ noted
an instance when the plaintiff became verbally “discontent” and “almost argumentative” with
medical professionals after she was told no pain medications would be administered to her
pending a laboratory testing. Docket 9, p. 37 (citing Exhibit 30F). In another instance, the ALJ
looked to Dr. Stephen Smith’s treatment notes from September 23, 2013. Docket 9, p. 37 (citing
Exhibit 44F). There, Dr. Smith noted,
[d]uring our discussion, the patient began indicating she was hurting
severely, grimacing, and even started coughing into a basin without
any significant vomitus produced. Prior to coming into the room, the
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patient had been observed for several minutes without any
appreciable appearance of anxiety or discomfort with the patient
returning to that upon leaving the room and being visited by other
individuals.
Docket 9, p. 1686. Going further, Dr. Smith noted in the claimant’s treatment plan that he was,
“quite concerned with her extreme desire to receive pain medications IV [intravenously],” and
that the “patient seems quite happy to be in the sick role at this time with significant attention
paid to her . . ..” Docket 9, p. 1688-89.
The plaintiff’s claim that the ALJ substituted his own opinion for that of medical
professionals in making his determination is unsubstantiated by the evidence. Upon review, the
court’s inquiry is whether the record, as a whole, provides sufficient evidence that would allow a
reasonable mind to accept the ALJ’s conclusions. See Richardson v. Perales, 402 U.S. 389, 401
(1971); see also Crowley, 197 F.3d at 197. In doing that here, the court has scrutinized the entire
record, including approximately 1,500 pages of plaintiff’s medical records. Performance of that
review, however, rather than revealing ALJ error, revealed that the evidence the ALJ relied
merely scratched the surface of the evidence that any reasonable person may have relied on in
reaching the same ultimate determination. In fact, while the ALJ noted only a few instances in
his analysis, there are many, many instances in which the plaintiff sought, or even often
demanded, very particular and specific pain medications. See, e.g., Docket 9, p. 938-39, 1097,
1099, 1195, 1225, 1246, 1408, 1498, 1521, 1677, 1688-89, 1717-18, 1745, 1748, 1775, 1800.
Those records also reveal that there were numerous instances where medical professionals

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questioned the authenticity of the plaintiff’s claims.1 And, finally, there were even instances
where the plaintiff appeared to have been seeking out surgical treatment or demanded she be
admitted to the hospital.2
The court sympathizes with the burden of possibly addictive behaviors, but the fact
remains that the ALJ was substantially justified in reaching his conclusion that the plaintiff was
less than credible in her claims. Because the record, as a whole, provides sufficient evidence that
would allow a reasonable mind to accept the ALJ’s conclusions, the court concludes that the ALJ
applied the proper legal standards, and his decision was substantially justified.
B. Whether the ALJ erred in assessing plaintiff’s residual functional capacity

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See Docket 9, p. 454 (“She has also faked anti phylactic reactions and I have witnessed her faking stridor
in the past.), 496 (Documentation of faking respiratory distress.), 856 (Among questioned seizures, “has falsified
wheezing previously while in the hospital.”), 1285 (Notes contradictory subjective statements to medical
professionals), 1292 (“I am certain this is again histrionics and not real pathology but she shows up in ER frequently
and I can usually calm her down with admission for a couple of days.”), 1397 (“. . . unlik[e]ly to have an
an[a]tomical or physiological cause of her pain.”), 1408 ([patient] should not be admitted unless an objective reason
can be found.”), (“[patient] had previous visit with morphine as an allergy, denies allergy this visit. [Patient] states
she has previously taken morphine without problems.”), 1657 (“[Patient] makes eye contact when nurse question was
she alright, then continues to grunt and move legs up and down.”), 1677 (“She was essentially extremely focused on
receiving intravenous opiate medications insisting that nothing else helps. She apparently goes to the Emergency
Department regularly to get injections . . .. Earlier in the course of her stay she did receive intravenous opiates but
that was discontinued. . .. That became an issue during the course of her stay. When observed she appears in no
distress, but occasionally one gets in the room she professes extreme pain that can only be relieved by intravenous
opiates. . .. She did not seem to be having any significant migraine problems at the time of her stay. . .. She was
conversant with her family and friends, and watching television, occasionally on the phone, using some hand held
devices at the time that she was stating these migraines were absolutely unbearable.”), 1682 (“Severe, recurrent and
intractable abdominal pain of questionable etiology. . .. After further discussion with the family it seems rather firm
that the patient has had seizures rule[d] out with inpatient monitoring in Meridian.”), 1684 (“The etiology of this is
unclear but given her other psychiatric/neuro issues I suspect this is all functional and further workup is likely to be
unrevealing.”), 1686 (“Prior to coming into the room, the patient had been observed for several minutes without any
appreciable appearance of anxiety or discomfort with patient returning to that upon leaving the room and being
visited by other individuals.”).
2

See Docket 9, p. 837 (patient requested repeat laparoscopy), 888 (“The patient desires surgery.”), 894
(“She desired hysterectomy.”), 935 (“Pt. Has had 11 ER visit[s] from 6-4-12 to 8-13-12.”), 1018 (“She now desires
definitive surgery.”), 1096 (“She came to the emergency room here stating that our office told her to come to the
emergency room and told her that I would admit her, which was not true. She was given multiple medications by the
emergency room physician here and when attempting to discharge her, she refused to go home and demanded to be
admitted.”), 1292 (“I am certain this is again histrionics . . .. She insists on being admitted.”).

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The plaintiff also claims the ALJ erroneously assessed plaintiff’s RFC because he did not
afford the proper weight to the opinion of DDS consultative physician, Dr. James Lane, in
formulating the RFC. Docket 13, p. 11-16. Upon review, the ALJ’s RFC determination is
“granted great deference and will not be disturbed unless the reviewing court cannot find
substantial evidence in the record to support the Commissioner’s decision or finds that the
Commissioner made an error of law.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); see
also 42 U.S.C.A. § 405(g). Because the court finds that the Commissioner’s decision was
substantially justified, the court holds that the ALJ properly weighed Dr. Lane’s opinion based on
the evidence in the record.
Dr. Lane performed a consultative psychological examination at the request of DDS on
October 19, 2012. Docket 9, pp. 1182-1187. The plaintiff argues that the ALJ improperly
weighed Dr. Lane’s medical opinion in reaching his ultimate RFC determination because he
found Dr. Lane’s opinion inconsistent with the evidence, including the doctor’s own evaluation.
Docket 13, pp. 15-16 (citing Docket 9, p. 39).
Upon review, the court finds the ALJ’s RFC determination to be consistent with the
evidence of record and the proper legal standards. Contrary to the plaintiff’s assertion, the ALJ
acknowledged the plaintiff’s severe impairments, including her mental impairments, in his RFC
determination. Ultimately however, the ALJ determined that plaintiff had the RFC “to lift, carry,
push, or pull 20 lbs. occasionally and 10 lbs. frequently and to stand, sit, or walk for 6 hours of
an 8-hour workday [and] also have occasional interaction with the public” despite those
impairments. Docket 9, pp. 34-40. The ALJ did not reach this decision unilaterally or without
medical evidence.
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Social Security Ruling 96-7p required the ALJ to make a credibility determination in this
case.3 When making assessing credibility, an ALJ must consider “the entire case record,
including the objective medical evidence, the individual’s own statements about symptoms,
statements and other information provided by treating or examining physicians or psychologists
and other persons about the symptoms and how they affect the individual, and any other relevant
evidence in the case record.” SSR 96-7p(4). In opting to give Dr. Lane’s opinion limited weight,
the ALJ explained that Dr. Lane’s report had internal inconsistencies and contained equivocal
statements in multiple areas, rendering it insufficiently specific to establish plaintiff’s
capabilities. Docket 9, p. 39.
The ALJ fulfilled his obligation to weigh all of the evidence from the record to make a
credibility determination, as required under SSR 96-7p. To find that the plaintiff’s claims lacked
credibility, the ALJ relied on inconsistency in her testimony as well as the opinions of other
qualified medical professionals as was discussed in the previous section of this Memorandum
Opinion. Docket 9, pp. 34-40. Many of those medical professionals, several of which had
incredibly extensive treatment relationships with the plaintiff due to her near-constant treatment
seeking, had determined that the plaintiff had a tendency to misrepresent or altogether falsify her
symptoms as well as exhibit drug-seeking behavior. Docket 9, pp. 34-40.
V. CONCLUSION
Reading the record as a whole, the court concludes that the ALJ’s opinion is supported by

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SSR 96-7p, “2. When the existence of a medically determinable physical or mental impairment(s) that
could reasonably be expected to produce the symptoms has been established, the intensity, persistence, and
functionally limiting effects of the symptoms must be evaluated to determine the extent to which the symptoms affect
the individual’s ability to do basic work activities. This requires the adjudicator to make a finding about the
credibility of the individual’s statements about the symptom(s) and its functional effects.”

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substantial evidence and upheld the proper legal standards. It is clear the ALJ extensively
reviewed the entire record, properly identified the relevant listed impairments, fully discussed the
evidence that was contained in the record and properly concluded that the plaintiff’s clams lacked
credibility and that she could return to past relevant work. The Commissioner’s decision is
affirmed. A final judgment in accordance with this memorandum opinion will issue this date.
This the 11th day of May, 2015.
/s/ S. Allan Alexander
UNITED STATES MAGISTRATE JUDGE

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