Hester v. Colvin

Filing 21

MEMORANDUM OPINION. Signed by Magistrate Judge Roy Percy on 11/17/16. (bnd)

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

PLAINTIFF

vs.

CIVIL ACTION NO. 1:15CV216-SAA

CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

MEMORANDUM OPINION
Plaintiff Tina Hester seeks judicial review under 42 U.S.C. § 405(g) of the decision of the
Commissioner of Social Security denying her application for disability insurance benefits (DIB)
under Section 223 of the Social Security Act. Plaintiff protectively filed an application for DIB
on January 11, 2012, alleging disability beginning on October 14, 2011. Docket 10, p. 204. Her
claim was denied initially on March 5, 2012, and upon reconsideration on April 2, 2012. Id. at
78-81, 83-85. She filed a request for hearing and was represented by counsel at the hearing held
on May 8, 2014. Id. at 26-75. The Administrative Law Judge (ALJ) issued an unfavorable
decision on July 21, 2014, (Docket 10, p. 8-20) and on October 27, 2015, the Appeals Council
denied plaintiff’s request for a review. Id. at 1-3. Plaintiff timely filed the instant appeal from
the ALJ’s most recent decision, the undersigned held a hearing on November 2, 2016, 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.

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I. FACTS
Plaintiff was born on January 11, 2012 and was forty-three at the time of the hearing.
Docket 10, p. 35. She completed ninth grade and later received her GED. Id. at 37. Plaintiff’s
past relevant work was as a bundler, customer service representative, caregiver, fabric cutter and
line supplier. Id. at 18. Plaintiff contends that she became disabled before her application for
benefits due to “disc degeneration, two spinal fusions and osteoarthritis.” Id. at 208.
The ALJ determined that plaintiff suffered from “severe” impairments including
degenerative disc disease status post spinal fusion, osteoarthritis, and migraines, (Docket 10, p.
13), 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, and 404.1526). Id. at 14. Based upon
testimony by the vocational expert [VE] at the hearing and considering the record as a whole, the
ALJ determined that plaintiff retains the Residual Functional Capacity (RFC) to
perform light work as defined in 20 CFR 404.1567(b) except the
claimant can light [sic] and/or carry 20 pounds occasionally and 10
pounds frequently. The claimant can stand, walk and/or sit for 6
hours in an 8-hour workday. The claimant can never climb
ladders, ropes or scaffolds, and can occasionally climb ramps and
stairs. He can occasionally stoop, kneel, balance, crouch and
crawl. The claimant must avoid concentrated exposure to
pulmonary irritants such as dust, odors, fumes and gases. The
claimant requires a sit/stand option.
Docket 10, p. 14. Upon further analysis under applicable rulings and regulations, the ALJ found
plaintiff to be less than fully credible in that the intensity, persistence and limiting effects she
claimed due to her symptoms were “not entirely credible.” Id. at 16. After evaluating all of the
evidence in the record, including testimony of a VE, the ALJ held that plaintiff could perform
her previous work as a customer service representative, and other jobs that exist in the national

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economy such as a cashier, ticket seller, and storage rental clerk. Id. at 19. As a result, the ALJ
concluded that plaintiff is not disabled under the Social Security Act. Id.
Plaintiff contends that the ALJ erred because she failed to properly consider the opinions
of the agency’s own examining physician and because she did not properly consider plaintiff’s
credibility.
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 [his] 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 (2010).

2

Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999).

3

20 C.F.R. §§ 404.1520(b)(2010).

4

20 C.F.R. §§ 404.1520(c)(2010).

5

20 C.F.R. §§ 404.1520(d). 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).
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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)(2010).

7

20 C.F.R §§ 404.1520(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

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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
The crux of this case is the relative weight given by the ALJ to the differing opinions
bearing on the plaintiff’s RFC offered by the two DDS consulting physicians, Dr. Thomas
Jeffcoat and Dr. Michael Morris. Dr. Jeffcoat reviewed only the plaintiff’s medical records prior
to the plaintiff’s February 28, 2012 spinal fusion surgery, did not physically examine her at any
point, and made a prospective assessment of the plaintiff’s post-surgery RFC as of October 14,
2012, while Dr. Morris based his assessment on a personal examination of the plaintiff postsurgery on December 29, 2012. Docket 10, pp. 363-70, 580-83. Further, Dr. Jeffcoat predicted
the plaintiff’s exertional limitations would include lifting 20 pounds occasionally, lifting 10
pounds frequently, and standing, walking and/or sitting for 6 hours in an 8-hour workday, while
Dr. Morris concluded the plaintiff’s actual impairments permitted her to lift less than 10 pounds
occasionally, to stand and/or walk for 4 hours in an 8-hour workday, and to sit for only 1.5 hours
in an 8-hour workday and for only 10 minutes without interruption. Id. In response to
hypotheticals posed by the ALJ, the vocational expert (“VE”) opined that a person who could sit
for 6 hours in an 8-hour workday (as Dr. Jeffcoat assessed the plaintiff would be able to do) is

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capable of performing the plaintiff’s past work as a customer service representative, but when
given a hypothetical that included the sitting limitations noted by Dr. Morris, the VE testified
that the person would be unable to perform either the plaintiff’s past work or other jobs in the
regional or national economy. Id. at 66-67.
In reaching a decision as to the plaintiff’s RFC, the ALJ gave Dr. Jeffcoat’s opinion
“great weight” while giving Dr. Morris’s opinion “limited weight.” Id. at pp.20-21. Further, the
ALJ found the plaintiff’s own testimony regarding her claimed limitations – which were more
consistent with Dr. Morris’s assessment than with Dr. Jeffcoat’s – to be “not entirely credible.”
Id. at 20. The ALJ concluded the plaintiff could sit for 6 hours in an 8-hour workday and,
apparently relying on the vocational expert’s testimony regarding jobs with a sit/stand option,
the ALJ found the plaintiff capable, with a sit/stand option, of performing both her past relevant
work as a customer service representative and other jobs in the national economy. Id. at 18, 22.
The plaintiff argues the ALJ’s decision is not supported by substantial evidence as she did not
properly weigh the opinions of the two consulting physicians and improperly discounted the
plaintiff’s testimony. The court agrees.
Without doubt the responsibility to determine the plaintiff’s residual functional capacity
belongs to the ALJ, Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995), but in making this
determination the ALJ must consider all the evidence in the record, evaluate the medical
opinions in light of other information contained in the record, and determine the plaintiff’s
ability despite any physical and mental limitations. Martinez v. Chater, 64 F.3d 172, 176 (5th
Cir. 1995). The ALJ has considerable discretion in reviewing facts and evidence but, as a
layman, she is not qualified to interpret raw medical data in functional terms. Perez v. Secretary

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of Health and Human Services, 958 F.2d 445, 446 (1st Cir. 1991) (citations omitted). An ALJ
may not establish physical limitations or the lack of such limitations without medical proof to
support that conclusion. Patterson v. Astrue, 2008 WL 5104746, *4 (N.D. Miss. 2008), citing
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). As established by the Fifth Circuit, “an ALJ
may not rely on [her] own unsupported opinion as to the limitations presented by the applicant’s
medical conditions.” Ripley v. Chater, 67 F.3d 552, 557-58 (5th Cir. 1995).
With respect to an ALJ’s reliance on a non-examining physician’s opinion, the Fifth
Circuit has stated it “may be true” that as a matter of law, the reports of non-examining
physicians do not provide substantial evidence “when a non-examining physician makes specific
medical conclusions that either contradict or are unsupported by findings made by an examining
physician.” Villa v. Sullivan, 895 F.2d 1019, 1023-24 (5th Cir. 1990) (citing Lamb v. Bowen, 847
F.2d 698, 703 (11th Cir. 1988); Strickland v. Harris, 615 F.2d 1103, 1109-10 (5th Cir. 1980)).
“We believe an ALJ may properly rely on a non-examining physician’s assessment when . . .
those findings are based upon a careful evaluation of the medical evidence and do not contradict
those of the examining physician.” Villa, 895 F.2d at 1024.
It is not clear what records Dr. Jeffcoat reviewed as his brief, check-box report does not
contain a list of evidence he considered. The ALJ commented nonetheless that Dr. Jeffcoat’s
opinion was “based upon a detailed review of claimant’s medical history, and submitted reports
by claimant.” Docket 10, p. 17. The fact is, however, that Dr. Jeffcoat’s report was based
entirely on records for the time period prior to the plaintiff’s second surgery and contains only a
prospective assessment – essentially a prediction – of the plaintiff’s post-surgery condition. Dr.
Morris, on the other hand, physically examined the plaintiff after her second surgery.

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It is clear that the findings of Dr. Jeffcoat, who did not examine the plaintiff, contradict
those of Dr. Morris, who did examine the plaintiff. According to the Fifth Circuit, those facts
alone may render improper as a matter of law the ALJ’s reliance on Dr. Jeffcoat’s assessment.
However, such a finding is unnecessary, as the additional facts regarding the timing of the two
reports render Dr. Jeffcoat’s findings even more unreliable relative to Dr. Morris’s.
The ALJ’s conclusion that Dr. Morris’s findings are undercut by his own statement that
he believed the plaintiff had a “minimal disability” is misplaced, as the ultimate issue of a
plaintiff’s disability is reserved to the Commissioner, who is not to give any special significance
to a medical source’s opinion on that issue. 20 CFR § 404.1527(d). Rather, it is the medical
source’s medical findings and other supporting evidence that is to be reviewed in making that
determination. Id.
The ALJ’s assessment of the plaintiff’s credibility is flawed as well. In contrasting the
plaintiff’s claimed limitations with her ability to perform ordinary functions, the ALJ in her
decision stated the plaintiff “has no problems taking care of her personal needs, doing laundry,
grocery shopping and attending church three times per week.” Docket 10, p.20. However, the
plaintiff actually testified she had problems in each of those regards. She testified to difficulty
dressing, needing help to put on socks or stockings. Docket 10, p.47. She testified that to do her
laundry she must wait until her husband is home so he can pick up the laundry and carry it to the
washroom for her. Docket 10, p.48. She testified she needs her husband’s assistance for grocery
shopping as well because she is unable to reach things, to pick up items that are too low, or to
pick up items such as bottled water. Docket 10, p.48. With respect to attending church, the
plaintiff testified that, due to her lower back pain, she could sit only 20 to 30 minutes at time

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before having to get up and walk out for a few minutes. Docket 10, p. 46. Clearly the ALJ
misstated the evidence on these matters.
In fashioning a limitations hypothetical that, according to the vocational expert, would
allow the performance of the plaintiff’s past relevant work, the ALJ relied on the findings of a
non-examining physician whose report predates the plaintiff’s second surgery and contradicts the
findings of a physician who examined the plaintiff post-surgery, and the ALJ discounted the
plaintiff’s testimony based, at least in part, on a misstatement of the evidence that was presented.
The court finds there is no substantial evidence supporting such a hypothetical, and a vocational
expert’s testimony based upon a defective hypothetical cannot itself constitute substantial
evidence of a non-disability. Boyd v. Apfel, 239 F.3d 698 (5th Cir. 2001). The court concludes
the ALJ’s decision is not supported by substantial evidence.
IV. DETERMINATION OF BENEFITS
In determining whether to reverse the Commissioner’s final decision and remand or to
grant benefits without further administrative review, the court must look to the completeness of
the record, the weight of the evidence in favor of the plaintiff, the harm to the claimant that
further delay might cause, and the effect of a remand delaying the ultimate receipt of benefits by
a deserving plaintiff. SOCIAL SECURITY LAW & PRACTICE, §55.77, p. 129. In this case, the
record supports the hypothetical that the vocational expert testified would not permit the
performance of the plaintiff’s past relevant work or other jobs in the national economy. This
diminishes – if not outright eliminates – the need for a remand for further consideration of the
disability issue. Additionally, the plaintiff has been very patient. She has been seeking benefits

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through the administrative processes for over four years.11 The court finds the evidence is
conclusive that the plaintiff is disabled, and that an award of benefits at this stage would be in
the best interests of the plaintiff’s health and welfare, and will avoid further undue delay which
would result upon remand for additional review. The court directs that this case be remanded for
the sole purpose of determining the amount of benefits to be awarded to the plaintiff under the
Act.
V. CONCLUSION
For the foregoing reasons, the court finds that the decision of the ALJ is not supported by
substantial evidence, that a substantial number of jobs do not exist in Mississippi or the national
economy that plaintiff can perform due to her limitations, and that plaintiff is entitled to benefits
under the Social Security Act. This case is remanded for the sole purpose of determining the
amount of benefits to be awarded. A final judgment in accordance with this memorandum
opinion will issue this day.
SO ORDERED, this, the 17th day of November, 2016.

/s/ Roy Percy
UNITED STATES MAGISTRATE JUDGE

11

Plaintiff protectively filed her applications for benefits on January 10, 2012.

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