Miller v. Astrue

Filing 22

MEMORANDUM OPINION. Signed by Magistrate Judge David A. Sanders on 10/3/17. (jcm)

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

RICKEY THOMAS MILLER

PLAINTIFF

VS.

CIVIL ACTION NO. 1:17-cv-00001-DAS

COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

MEMORANDUM OPINION
This matter is before the court pursuant to 42 U.S.C. § 405(g) to review the decision of the
Commissioner of Social Security (“Commissioner”) denying the application of Rickey Thomas
Miller for disability benefits under the Social Security Act. The parties have consented to entry of
final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c),
with any appeal to the Court of Appeals for the Fifth Circuit.
The court, having reviewed the administrative record, the briefs of the parties, the
applicable law, and having heard oral argument, finds the Commissioner’s decision denying
benefits should be affirmed. The decision is supported by substantial evidence and no prejudicial
error has been found.
Facts and Procedural History
On November 19, 2013, Rickey Miller filed his application for a period of disability and
disability insurance benefits, alleging onset of disability on June 1, 2013. After the application was
denied at the lower levels, a hearing was held before an administrative law judge (ALJ) on
November 17, 2015. An unfavorable decision was issued on May 4, 2016. Miller’s insured status
expires on December 31, 2017.

The ALJ found that Miller’s hearing impairment, otosclerosis, was severe. After
determining that the claimant did not meet any listed impairment, the ALJ determined Miller’s
residual functional capacity, finding he could perform a full range of work at all exertional levels
but that he could work in no more than a moderate noise-level environment. Relying on the
testimony of a vocational expert, the ALJ concluded that Miller was capable of adjusting to work
other than his past work experience and that such other work existed in sufficient numbers in the
national economy. Therefore, he was found not disabled.
The claimant asserts the ALJ’s decision is not supported by substantial evidence and is not
based upon proper legal standards because the ALJ substituted his own opinions for, or
misinterpreted, those of the medical and vocational experts.
Law and Standard of Review
This court’s review of the Commissioner’s decision is limited to an inquiry into whether
there is substantial evidence to support the findings of the Commissioner and whether the correct
legal standards were applied. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);
Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.
1990). Substantial evidence has been defined as “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept at adequate to support a conclusion.” Perales, 402
U.S. at 401 (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)). The Fifth Circuit
has further held that substantial evidence “must do more than create a suspicion of the existence
of the fact to be established, but ‘no substantial evidence’ will be found only where there is a
‘conspicuous absence of credible choices’ or ‘no contrary medical evidence.’” Harrell v. Bowen,
862 F.2d 471, 475 (5th Cir. 1988) (quoting Hames v. Heckler, 707 F.2d 162, 164(5th Cir. 1983)).
Conflicts in the evidence are for the Commissioner to decide, and if substantial evidence is found
to support the decision, the decision 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 may not reweigh the evidence,
try the case de novo, or substitute its own judgment for that of the Commissioner even if it finds
that the evidence preponderates against the Commissioner’s decision. Bowling v. Shalala, 36 F.3d
431, 434(5th Cir. 1994); Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988); Harrell, 862 F.2d
at 475. If the Commissioner’s decision is supported by the evidence, then it is conclusive and must
be upheld. Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994).
In determining disability, the Commissioner, through the ALJ, works through a five-step
sequential process.1 The burden rests upon the claimant throughout the first four steps of this fivestep process to prove disability, and if the claimant is successful in sustaining his burden at each
of the first four levels, then the burden shifts to the Commissioner at step five. 2 First, claimant
must prove he is not currently engaged in substantial gainful activity. 3 Second, claimant must
prove his 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 claimant is disabled if he proves
that his impairments meet or are medically equivalent to one of the impairments listed at 20 C.F.R.
Part 404, Subpart P, App. 1.5 Fourth, claimant bears the burden of proving he is incapable of
meeting the physical and mental demands of his past relevant work.6 If claimant is successful at
all four of the preceding steps, the burden shifts to the Commissioner to prove, considering

1 See 20 C.F.R. § 404.1520 (2012).
2 Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991).
3 20 C.F.R. § 404.1520(b) (2012).
4 20 C.F.R. § 404.1520(c) (2012).
5 20 C.F.R. § 404.1520(d) (2012). If a claimant’s impairment meets certain criteria, that impairment is of
such severity that it would prevent any person from performing substantial gainful activity. 20 C.F.R. § 404.1525
(2012).
6 20 C.F.R. § 404.1520(e) (2012).

claimant’s residual functional capacity, age, education, and past work experience, that he is
capable of performing other work.7 If the Commissioner proves other work exists which claimant
can perform, claimant is given the chance to prove that he cannot, in fact, perform that work.8
Analysis and Discussion
In the present case, essentially a single issue lies before the court: Whether the ALJ erred
by substituting his own opinions for, or misinterpreting, those of the medical and vocational
experts. Claimant argues that the ALJ misinterpreted his medical records and that the ALJ
analyzed the medical records and vocational testimony out of context when he found the
claimant not disabled.
In 2007, 2011, and 2012, claimant was seen by Drs. Malcolm and James McAuley, ENT
specialists. In December 2007, Miller presented with tinnitus in both ears, which had been
ongoing for approximately one month. He complained of associated symptoms of difficulty
concentrating, hearing loss, and insomnia. However, Dr. McAuley found him “[n]egative for . . .
lack of concentration and psychiatric/emotional problems.”9 He was found to have chronic
mixed hearing loss, and they discussed corrective surgery and hearing aids. In February 2011,
Miller again presented with bilateral sensorineural hearing loss. He and Dr. McAuley again
discussed the options of surgery or hearing aids. Miller opted for hearing aids. By 2012, Miller’s
hearing loss had progressed to moderate “with a noticed decline.” He was negative for fatigue

7 20 C.F.R. § 404.1520(f)(1) (2012).
8 Muse, 925 F.2d at 789.
9 Ex. 11F.

and exhibited normal levels of consciousness. Surgery was again discussed, but Dr. McAuley
explained that surgery would not cure the ringing in claimant’s ears.
In 2014, claimant was examined by Dr. J. Montgomery Berry, an ENT specialist,
who found that Miller had difficulty discriminating voices, as well as hearing loss and tinnitus.10
He also found Miller positive for fatigue. Notably, Dr. Berry discussed new tinnitus hearing aids.
Miller was to schedule an appointment to get fitted for these new hearing aids when he was
ready.11 Following an audiogram, Dr. Berry found claimant’s hearing loss to be “moderatelysevere to profound.” Dr. Berry also performed a consultative examination in February 2014.12
He reported Miller had otosclerosis in both ears, that he communicated well, and that he had
moderately severe to profound mixed hearing loss.
Dr. Lucas McElwain also performed a consultative examination in February 2014.13
Claimant complained of hearing loss and reported a diagnosis of otosclerosis and ringing in his
ears which interfered with his sleep. Dr. McElwain noted that the use of hearing aids had helped
to some extent but not enough to allow claimant to sleep at night. According to Dr. McElwain’s
report, claimant “can dress himself, feed himself, stand at one time for two hours and a total of
four hours in an eight hour day. He can walk on level ground for one hour; sit for two hours.
There are no limitations to his lifting. He can drive a car up to two hours. Household chores
include sweeping, shopping, mopping, vacuuming, cooking, dishes, and mowing grass. He has

10 Ex. 14F.
11 It is unclear from the record whether Miller was ever fitted with these “new tinnitus hearing aids.” At

oral argument, claimant’s attorney represented that Miller was wearing the “new tinnitus hearing aids” at the
administrative hearing.
12 Ex. 13F.
13 Ex. 12F.

no trouble climbing stairs.” At the examination, claimant was wearing bilateral, in-the-ear
hearing aids. Even with those hearing aids, claimant consistently asked Dr. McElwain to repeat
questions or commands and to speak in an elevated volume when not looking directly at
claimant. His speech was “100 percent understandable.”
Vocational Expert Charles Waldrick testified that an individual with the claimant’s age
and education, with no exertional limits but who could perform no work in more than a moderate
noise level, could not return to past work as a welder. However, they would be able to perform
other work in the national economy. Examples of jobs included produce weigher (light,
unskilled, 70,000 jobs nationally), silverware assembler (light, unskilled, 107,000 jobs
nationally), and jewelry stringer (light, unskilled, 22,000 jobs nationally). According to
Waldrick, an individual who can do the full range of light work but who must avoid more than
moderate noise could perform these jobs. However, if an audiologist or an ENT stated that the
individual would never be able to avoid hazards in the workplace, “there’s no occupations that
person could perform.” At the close of the hearing, the ALJ agreed to delay his ruling to allow
claimant and his attorney to obtain such a statement.
Finally, because claimant alleged an inability to work because of depression caused by
his otosclerosis, the ALJ recommended a comprehensive mental health evaluation before issuing
a ruling. Prior to this evaluation, claimant had no recorded complaints or treatment of depression.
In February 2016, Dr. J. Morris Alexander performed a comprehensive mental evaluation.14 At
the evaluation, Miller “sat facing, leaning in closely, looking intently and sometimes asking for

14 Ex. 17F.

things to be repeated. He said he heard better when [Dr. Alexander] spoke loudly and he seemed
to understand most of what was said this way.” Dr. Alexander found that Miller helped clean the
house and sometimes cooked. He could make the bed, change the sheets, operate the dishwasher,
wash dishes by hand, sweep, mop, vacuum, and do laundry. He could make phone calls and “a
little texting,” but did not use a tablet or computer. “He can do yardwork. He drives. He
sometimes will do a little grocery shopping.” Miller told Dr. Alexander that he relied on his wife
to make his appointments due to trouble hearing and understanding people on the telephone, but
his wife said he was capable of doing it himself.
Dr. Alexander found claimant “was oriented to person, place, time and purpose for the
evaluation. He sits close, watches closely, and sometimes turns his head to hear. He asks for
things to be repeated sometimes. Speech was at normal rate and volume, logical and coherent,
with some humor.” Although his affect was “somewhat depressed,” Miller denied any history of
hallucinations or suspiciousness. He knew the current and past presidents.
He was fair but limited in abstraction to proverbs and in responses to questions
requiring social judgment. Simple addition, subtraction[,] and multiplication were
correctly performed but not division. [Two] of [four] words were recalled after
several minutes. Recall of digits forward was within normal limits though done
with great difficulty, but reverse was below average. Sleep is disrupted by the
ringing in his ears.
Miller stated he often felt like crying and was depressed during the examination. He had a
history of suicidal thoughts but no attempts or fully formed plans. Dr. Alexander believed he was
able to independently manage finances. He also determined that Miller “appear[ed] unable to
perform routine repetitive tasks due to fatigue, but he seems to have the requisite skills.” The
ALJ gave little weight to Dr. Alexander’s opinion regarding the effects of Miller’s fatigue on his
ability to work based on the lack of record evidence to support the level of fatigue ascribed. The
ALJ concluded Dr. Alexander’s opinion was “based primarily on the claimant’s subjective
complaints.”

In November 2015, Dr. Berry wrote a short letter “specifically directed toward Mr.
Miller’s medical condition and his ability to work.”15 Dr. Berry reaffirmed Miller’s diagnosis of
otosclerosis, causing mixed hearing loss, and then generally described how hearing loss could
affect an individual:
Because of this loss, it does make him have great difficulty discriminating voices
as well as understanding conversation. The questions that I was asked to answer
[are] 1. Was he able to avoid danger? 2. Is he a danger to himself? 3. Is he a danger
to others at the workforce?
Specifically, if Mr. Miller has difficulty hearing any things that are coming, it could
certainly affect his ability to avoid danger and help others avoid danger. Any
hearing loss that is significant could certainly impair one’s ability to be gainfully
employed.
Claimant argues the letter from Dr. Berry was a statement by an ENT that Miller could
never avoid hazards in the workplace, and that consistent with the testimony of the vocational
expert, there were no jobs he could perform in the national economy and was therefore disabled.
While Dr. Berry posed three questions, he failed to answer any. He did not state whether Miller
was “able to avoid danger.” Instead, he stated that if Miller has difficulty hearing things that are
coming, it could affect his ability to avoid danger. He did not, however, state that Miller was
unable to avoid danger and certainly did not state that he could never avoid danger. His brief
statement was, as the ALJ found, “broad as it relates to hearing loss and does not specifically
address the limitation derived from the claimant’s impairments[.]”
During the consultative examination, Dr. Berry gave the opinion that claimant should
function well with amplification (hearing aids) and claimant testified that the hearing aids had
helped his hearing some but that the ringing would not stop. Claimant and his wife both testified

15 Ex. 15F.

that the ringing was worse at night—that it was so bad, it kept claimant from sleeping which
made him unable to function the next day. Similar subjective complaints led to Dr. Alexander’s
statement that claimant could not perform repetitive tasks due to fatigue. However, the ALJ
found—consistent with the medical records and claimant’s self-reporting—that claimant could
perform extensive activities of daily living. Miller stated he performed household chores,
cooked, drove a car up to two hours, and mowed the lawn. He went to church and attended
sporting events. Additionally, claimant was prescribed Ambien to help him sleep. According to
him, although the Ambien helped, it caused him to have suicidal thoughts so he stopped taking it.
However, treatment records indicated that he tolerated the Ambien well and document no
complaints of side effects.16 Conflicts in the evidence are for the Commissioner to decide, and if
substantial evidence is found to support the decision, the decision must be affirmed even if there
is evidence on the other side. See Selders, 914 F.2d at 617.
Finally, at oral argument, claimant asserted his otosclerosis-induced fatigue impacted his
concentration, persistence, and pace to the point of being disabling. However, that claim was
thoroughly addressed by the ALJ, whose decision is supported by substantial evidence in the
record. Dr. Alexander’s mental health evaluation found claimant to be alert and oriented with
normal consciousness. He could perform basic mathematical functions (except for division),
could recall a sequence of numbers forward, and could recall fifty percent of words after a delay.
Thus, the ALJ found he had mild limitations as to concentration, persistence and pace.
Additionally, the ALJ noted that all of claimant’s medical evaluations were completed

16 Ex. 6F; Ex. 8F.

successfully with no notes of unreasonable delay. While accommodations had to be made for
claimant at the hearing so he could sit closer to the ALJ to be able to hear, the hearing also
proceeded successfully. Claimant was alert and oriented at the hearing. In light of this evidence,
the ALJ found that claimant’s claims of debilitating fatigue were not supported by the evidence.
On an independent review of the evidence, the court finds the ALJ did not err in his assessment.
Conclusion
The court finds, therefore, that substantial evidence supports the ALJ’s decision in this
matter, and it is thus affirmed. A final judgment consistent with this opinion will be entered.
SO ORDERED, this the 3rd day of October, 2017.

/s/ David A. Sanders
UNITED STATES MAGISTRATE JUDGE