Shells v. Colvin
MEMORANDUM OPINION. Signed by Magistrate Judge Roy Percy on 1/13/17. (cs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ALICE MERL SHELLS
CIVIL ACTION NO.: 1:16-CV-62-RP
COMMISSIONER OF SOCIAL SECURITY
Plaintiff Alice Merl Shells has applied for judicial review under 42 U.S.C. § 405(g) of the
Commissioner of Social Security’s decision denying her application for supplemental security
income (SSI) under Title XVI of the Social Security Act. Docket 1. Plaintiff filed an application
for benefits on July 25, 2012, alleging disability beginning on August 1, 2000.1 Docket 7 at 13237.
The agency administratively denied Plaintiff’s claim initially on October 2, 2012, and on
reconsideration on January 16, 2013. Id. at 65-80, 84-87. Plaintiff then requested an
administrative hearing, which Administrative Law Judge (ALJ) Susan Poulos held on August 15,
2014. Id. at 91-92, 103-08. The ALJ issued an unfavorable decision on September 26, 2014. Id.
at 8-23. The Appeals Council denied her request for review on February 16, 2016. Id. at 1-4.
Plaintiff timely filed this appeal from the February 16, 2016, decision, the undersigned held a
hearing on December 14, 2016, and it is now ripe for review.
On August 15, 2014, Plaintiff moved to amend the alleged onset date to July 24, 2012, and the ALJ granted the
motion. Docket 7, p. 11, 32.
Because both parties have consented to a magistrate judge conducting 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. Docket 10.
Plaintiff was born September 27, 1973, and was 40 years old at the time of the ALJ
hearing. Docket 7 at 34. Plaintiff has a ninth grade education and no past relevant work history.
Id. at 35, 38-39. Plaintiff contends she became disabled because of pain causing her to suffer
from “severe impairments affecting her spine” and also as a result of carpal tunnel syndrome
affecting her left hand. Id. at 37. Regarding Plaintiff’s spinal impediments, Plaintiff specifically
claims she suffers from a mild foramina encroachment in her lumbar spine and disk extrusion
and fibrosis tear in her cervical spine. Id. At the ALJ hearing, Plaintiff testified that she
experiences pain in her back, arm, leg, and hip with the most significant pain in her back. Id. at
42. She stated that she could walk “maybe half a football field” before experiencing pain in her
left hip; she could stand and sit “maybe a couple of hours or so”; and she could lift between five
and ten pounds. Id. at 45-46. Plaintiff claimed that she could count change or sort things with her
left hand despite the effects of carpal tunnel syndrome and that the brace she has been instructed
to wear “helps a lot” with the pain. Id. at 48-49.
The ALJ established that Plaintiff had not engaged in substantial gainful activity since
July 24, 2012, the amended alleged onset date. Id. at 13. Next, the ALJ found that Plaintiff
experienced the severe impairments of carpal tunnel syndrome and degenerative disk disease but
that Plaintiff’s impairments did not meet or medically equal a listed impairment in 20 C.F.R. Part
404, Subpart P, Appendix 1 (20 C.F.R. 416.920(d), 416.925, and 416.926). Id. at 13, 15.
Considering Plaintiff’s severe impairments, ALJ found that Plaintiff’s demonstrated
abilities were consistent with a Residual Functional Capacity (RFC) to perform light work. Id. at
16-17. The ALJ concluded that Plaintiff could “lift and carry twenty pounds occasionally and ten
pounds frequently; […] stand and walk a total of six hours out of an eight-hour work day; […] sit
six hours of an eight-hour workday; […] occasionally balance, stoop, crouch, kneel, and crawl;
[…] never climb ladders, ropes or scaffolds and […] occasionally climb ramps and stairs.” Id. at
16. Further, the ALJ determined that Plaintiff retained the ability to “perform work that allows
her to avoid concentrated exposure to workplace hazards, such as unprotected heights, moving
machinery, as well as temperature extremes, [… and] vibration.” Related to Plaintiff’s carpal
tunnel syndrome, the ALJ concluded that Plaintiff could “occasionally reach, handle, and finger
objects with the left, non-dominant, extremity.” Id. at 16.
Treating physician Amy Tucker, M.D. considered Plaintiff unable to adequately perform
daily activities or work due to her pain and determined that bed rest was medically necessary. Id.
at 17-18. However, the ALJ found that “the medical records do not reflect substantial limitations
from [Plaintiff’s] physical conditions to support her allegations of debilitating symptoms.” Id. at
17. Consequently, the ALJ afforded little weight to Dr. Tucker’s medical source statement,
finding that Dr. Tucker’s opinions are “inconsistent with the preponderance of the objective
medical evidence.” Id. at 17-18.
Consultative examining physician J.C. Adams, M.D. assessed Plaintiff as having the RFC
to perform light work with the following restrictions: no restrictions in her ability to sit, stand,
and walk; occasional balancing, stooping, crouching, and kneeling but never crawling or
climbing; frequent pushing and pulling and occasional handling, fingering and reaching in all
directions. Id. at 19. Dr. Adams noted that the restrictions he provided are greater than what he
would expect from Plaintiff’s conditions. Id. at 19. The ALJ afforded significant weight to Dr.
Adams’s opinions, finding them consistent with the objective medical record. Id.
Based on her review of the medical evidence and in conjunction with Plaintiff’s
allegations, the ALJ concluded that Plaintiff’s “statements concerning the intensity, persistence
and limiting effects of [her] symptoms are not credible to the extent they are inconsistent with
the [ALJ’s] residual functional capacity assessment” because they are “inconsistent with the
preponderance of the objective medical evidence.” Id. at 21.
The ALJ found that Plaintiff’s residual functional capacity to perform the full range of
light work is impeded by additional limitations. Id. at 22. Having questioned the vocational
expert (VE) regarding whether jobs existed in the national economy for an individual of the
Plaintiff’s age, education, work experience, and residual functional capacity, the ALJ noted the
VE’s testimony that given those factors, the individual would be able to perform the
requirements of occupations such as a cashier, wiper, and bagger. Id. The ALJ ultimately ruled
that Plaintiff had not been under a disability, as defined in the Social Security Act, since July 24,
2012, the date her application was filed. Id.
Plaintiff claims that the ALJ’s residual functional capacity conclusion is not supported by
substantial evidence and that the ALJ erred as a matter of law in failing to reconcile the key
differences between the VE’s opinion and information provided in the Dictionary of
Occupational Titles (DOT). Docket 12 at 13.
II. EVALUATION PROCESS
In determining disability, the Commissioner, through the ALJ, works through a five-step
sequential evaluation process.2 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
See 20 C.F.R. §§ 404.1520 (2012).
each of the first four levels, then the burden shifts to the Commissioner at step five.3 First,
plaintiff must prove she is not currently engaged in substantial gainful activity.4 Second, plaintiff
must prove her impairment is “severe” in that it “significantly limits [her] physical or mental
ability to do basic work activities . . . .”5 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).6 If plaintiff does not meet
this burden, at step four she must prove that she is incapable of meeting the physical and mental
demands of her past relevant work.7 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.8 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
III. STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision to deny benefits is limited to
determining whether the decision is supported by substantial evidence and whether the
Commissioner applied 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
Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999).
20 C.F.R. §§ 404.1520(b) (2012).
20 C.F.R. §§ 404.1520(c) (2012).
20 C.F.R. §§ 404.1520(d) (2012). 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. §
20 C.F.R. §§ 404.1520(e) (2012).
20 C.F.R §§ 404.1520(g)(2010).
Muse, 925 F.2d at 789.
standards were applied in reviewing the claim. Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir.
1983). A court has limited power of review and may not reweigh the evidence or substitute its
judgment for that of the Commissioner,10 even if it finds that the evidence leans against the
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 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, 402 U.S. at 390.
Plaintiff argues that the Commissioner’s decision should be reversed on two separate
grounds. Docket 12 at 13. First, Plaintiff claims the ALJ’s residual functional capacity
conclusion is not supported by substantial evidence because both Dr. Tucker’s and Dr. Adams’s
opinions support a finding of disability. Id. at 15-17. Plaintiff argues that the ALJ “substituted
her own judgment without the support of substantial evidence and concluded [Plaintiff] was
capable of a broader range of work activity than opined by either Dr. Tucker or Dr. Adams.” Id.
Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988).
Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988).
The ALJ assigned limited weight to treating physician Dr. Tucker’s opinion finding it
was “inconsistent with the preponderance of the objective medical evidence.” Docket 7 at 18.
Plaintiff argues that before declining to give a treating physician’s opinion controlling weight,
the ALJ must apply the following factors: the length of the treatment relationship and the
frequency of examination, the nature and extent of the treatment relationship, supportability of
the opinion, consistency of the opinion with the record as a whole, and the specialization of the
treating source. Docket 12 at 13-14 (citing 20 C.F.R. 404.1527); see also, Newton v. Apfel, 209
F.3d 448, 453 (5th Cir. 2000). The Commissioner responds that the ALJ identified good cause for
not affording controlling weight to Dr. Tucker’s opinion and properly relied on medical
evidence, including Dr. Tucker’s treatment records, when assessing Plaintiff’s RFC. Docket 14
Good cause may exist to allow an ALJ to give lesser weight to evidence from a treating
physician relative to other experts where the treating physician’s evidence is conclusory, is
unsupported by medically acceptable clinical, laboratory, or diagnostic techniques, or is
otherwise unsupported by the evidence. Newton v. Afpel, 209 F.3d 448, 456 (5th Cir. 2000). Dr.
Tucker’s May 31, 2013, clinical assessment of pain placed limitations on Plaintiff’s ability to
adequately perform daily activities or work and stated that physical activity—such as walking,
standing, sitting, bending, stooping, and moving of extremities—would increase Plaintiff’s pain
to such a degree that bed rest and/or medication would be necessary. Docket 7 at 291. The Court
agrees with the Commissioner that the medical record before the ALJ does not support Dr.
Tucker’s opinion that Plaintiff was incapacitated due to significant pain. Id. at 292. Dr. Tucker’s
records consistently note Plaintiff’s back pain, but do not provide support for her claim that
Plaintiff could only stand or walk for one hour during an eight-hour work day. Id. On multiple
visits Dr. Tucker documents Plaintiff’s gait as “normal” and references Plaintiff’s full range of
motion. Id. at 249, 319, 333, 358, 367, 405. Further, Plaintiff inconsistently reports the duration
of her pain and inconsistently rates her level of pain. Id. at 262, 271, 277, 311, 331, 336, 343,
Although a treating physician’s opinion and diagnosis should be given considerable
weight in determining disability, “the ALJ has sole responsibility for determining a claimant's
disability status.” Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990). “[T]he 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) (citation omitted). Further, when declining to give
a treating physician’s opinion controlling weight, the ALJ is only required to perform a detailed
analysis of the treating physician’s opinion if there is no reliable medical evidence from another
examining physician that controverts the treating physician’s opinion. Newton, 209 F.3d at 4457-47; Rollins v. Astrue, 464 F. App’x 353, 358 (5th Cir. 2012).
The ALJ afforded the consultative examiner Dr. Adams’s opinion significant weight
finding it was consistent with the objective medical record. Docket 7 at 19. Dr. Adams found that
Plaintiff experienced chronic neck and back pain and degenerative disc disease. Id. at 18, 368-69.
His observations included Plaintiff’s display of a normal gait and ability to walk without
difficulty, her normal range of motion in all joints with the exception of her left upper extremity,
and full sensory ability in her upper and lower extremities. Id. at 18, 367-68. The ALJ noted Dr.
Adams’s opinion that Plaintiff’s presentation was not completely valid and that she showed
reduced effort during her physical examination. Id. at 18, 368, 372. Dr. Adams assessed Plaintiff
as having the ability to perform a light range of work with no restriction on her ability to sit,
stand, and walk, the occasional ability to balance, stoop, crouch, and kneel but never crawl or
climb, the frequent ability to push and pull, and the occasional ability to handle, finger, and reach
in all directions. Id. at 370-72.
Plaintiff argues that the ALJ discounted Dr. Adams’s findings (despite affording his
opinion significant weight) by failing to adopt a bilateral limitation on fingering, handling, and
reaching in all directions based on Dr. Adams’s findings of reduced grip strength in the upper
extremities. At the hearing, Plaintiff argued that Dr. Adams intended this limitation to be
bilateral because he did not specify that it was specific only to the left upper extremity. Plaintiff
further attempted to assert the existence of a bilateral restriction caused by cervical spine
compression by arguing that such a condition could reasonably have a bilateral effect.
The Commissioner responded that Dr. Adams’s report references his consultative
examination for clarification on the stated restrictions which specifies no joint abnormalities and
normal range of motion except for the left arm. The Commissioner pointed out that Dr. Adams
similarly found reduced range of motion specific only to Plaintiff’s left wrist and moreover,
noted “effort a concern.” The Commissioner argued, and the Court agrees, that Dr. Adams’s
records are consistent with treating physician Dr. Tucker’s records which contain findings of a
full range of motion and little mention of bilateral shoulder pain.
The responsibility to determine the plaintiff’s residual functional capacity belongs to the
ALJ, and in making her determination she 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 her physical and mental limitations. Ripley v. Chater, 67 F.3d 552, 557
(5th Cir. 1995); Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995). However, the ALJ may not
establish physical limitations or the lack thereof without medical proof to support such a
conclusion. Patterson v. Astrue, 2008 WL 5104746, *4 (N.D. Miss. 2008), citing Nguyen v.
Chater, 172 F.3d 31, 35 (1st Cir. 1999). “The ALJ’s findings of fact are conclusive when
supported by substantial evidence, 42 U.S.C 405(g), unless they are reached by ignoring
evidence, misapplying the law or judging matters entrusted to experts.” Nguyen v. Chater, 172
F.3d at 35.
Considering all the evidence in the record, the ALJ did not err in failing to adopt a
bilateral limitation in Plaintiff’s use of the upper extremities. The medical record as a whole,
including records from both Dr. Tucker and Dr. Adams, provides substantial evidence supporting
the ALJ’s conclusions regarding Plaintiff’s residual functional capacity. Further, the ALJ did not
err in finding that neither Dr. Tucker’s nor Dr. Adams’s opinions support a finding of disability.
Plaintiff’s second ground for reversal of the Commissioner’s decision is that the ALJ
failed to reconcile differences between the VE’s opinion and information provided in the
Dictionary of Occupational Titles (DOT) as Social Security Ruling 00-4p requires. Docket 12 at
13, 17-21. At step five of the evaluation process, the Commissioner bears the burden of
establishing that there is gainful employment the claimant is capable of preforming considering
her RFC, age, education, and past work experience. Carey v. Apfel, 230 F.3d 131, 135 (5th Cir.
2000). The ALJ held that Plaintiff was capable of gainful employment because, despite her
existing impairments, she could perform certain light unskilled jobs identified by the VE
including occupations such as cashier, wiper, and bagger. Docket 7 at 22.
Plaintiff argues that these specific DOT job listings contemplate the bilateral use of upper
extremities and thus are in conflict with the VE’s statements that Plaintiff could perform those
jobs with the restricted use of her left, non-dominant arm. Docket 12 at 17. At the hearing,
Plaintiff called into question the validity of the vocational testimony on which the ALJ relied
based on the ALJ’s failure to obtain or provide any factual basis or explanation for the VE’s
allegedly conflicting opinion. Plaintiff argued that the ALJ is required to resolve inconsistencies
with the DOT in her decision and should have given an explanation as to how the stated jobs
could be performed with the restricted use of the left upper extremity. The Commissioner
responded that this is not a real conflict based on Carey v. Apfel, 230 F.3d 131 (5th Cir. 2000),
because the DOT does not specify that bilateral use of upper extremities is required. Docket 14 at
Social Security Ruling 00-4p emphasizes that before relying on VE evidence in support
of a disability determination, an ALJ must identify and obtain a reasonable explanation for any
conflicts between a VE’s testimony and information in the DOT. SSR 00-4P (S.S.A. Dec. 4,
2000). Further, an ALJ is required to explain in the decision how any identified conflict was
resolved. Id. However, the Court agrees with the Commissioner that there is not a conflict
between the DOT and VE’s testimony; rather, the VE’s testimony regarding Plaintiff’s
limitations is more specific but not in conflict with the DOT, and the ALJ properly relied on that
testimony in determining that Plaintiff is not disabled.
The Fifth Circuit’s decision in Carey v. Apfel is on all fours with the facts of the instant
case. Carey, 230 F.3d 131 (5th Cir. 2000). In Carey, the claimant’s left arm was amputated
below the elbow. Id. Carey objected to the ALJ’s reliance on the vocational expert’s testimony
that he could perform certain identified jobs with the use of only one arm, claiming that such
testimony conflicted with the DOT’s descriptions. Id. at 135. The Fifth Circuit instructed that
“the DOT job descriptions should not be given a role that is exclusive of more specific
vocational expert testimony with respect to the effect of an individual claimant’s limitations on
his or her ability to perform a particular job.” Id. at 145. The court found no actual conflict
between the VE’s testimony and the DOT because the DOT did not contain any requirement of
“bilateral” use of the upper extremities, and the VE specifically testified that the subject jobs
could be performed with the use of only one arm and hand. Id. at 146.
Here, as in Carey, the vocational expert’s unchallenged testimony that the Plaintiff could
perform the identified jobs with the added limitation of frequently reaching, handling, and
fingering with her left upper and non-dominant extremity is tantamount to “more specific
vocational expert testimony with respect to the effect of an individual claimant’s limitations.”
Docket 7 at 58; Carey, 230 F.3d at 145. Further, the DOT’s descriptions for cashier, wiper, and
bagger do not contain any requirement of “bilateral” use of the upper extremities, and thus, the
VE’s more specific testimony is not in conflict with the DOT. In the context of the record as a
whole, the VE’s testimony is adequate to support the ALJ’s determination that Plaintiff could
perform available work and is not disabled.
The Court finds that the ALJ properly discounted Dr. Tucker’s opinion as it was not
supported by record evidence. The record contained sufficient medical evidence from Dr.
Adams, as well as from Dr. Tucker’s records, to enable the ALJ to properly formulate Plaintiff’s
RFC. There was no actual conflict between the VE’s testimony and the DOT. The identified jobs
did not contain any requirement of bilateral fingering ability or dexterity, and the VE testified
that the identified jobs could be performed with limited use of Plaintiff’s non-dominant
extremity. Because the ALJ’s decision was supported by substantial evidence, the Court affirms
the decision of the Commissioner.
A final judgment in accordance with this memorandum opinion will issue this day.
SO ORDERED, this the 13th day of January, 2017.
/s/ Roy Percy
UNITED STATES MAGISTRATE JUDGE
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