Burton v. Commissioner of Social Security
Filing
21
FINAL JUDGMENT AFFIRMING the Commissioner's decision. CASE CLOSED. Signed by Magistrate Judge Jane M. Virden on 9/1/21. (jla)
Case: 1:20-cv-00149-JMV Doc #: 21 Filed: 09/01/21 1 of 6 PageID #: 847
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
BEVERLY BURTON
PLAINTIFF
v.
NO.: 1:20-CV-149-JMV
COMMISSIONER OF SOCIAL SECURITY
DEFENDANT
FINAL JUDGMENT
This matter is before the Court pursuant to 42 U.S.C. § 405(g) for judicial review of an
unfavorable final decision of the Commissioner of the Social Security Administration regarding
Plaintiff’s application for a period of disability and disability insurance benefits. 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.1 The Court,
having reviewed the record, the administrative transcript, the briefs of the parties, and the
applicable law and having heard oral argument, finds as follows, to-wit:
The Plaintiff asserts on this appeal that the Administrative Law Judge (the “ALJ”) and the
Appeals Council (the “AC”) committed the following reversible errors: (1) the AC failed to
consider the Medical Source Statement (dated approx. 2 months after the ALJ’s decision) of Dr.
Castillo, Plaintiff’s treating physician; (2) the ALJ’s decision and summary of the testimony were
1
Judicial review under 42 U.S.C. § 405(g) is limited to two inquiries: (1) whether substantial evidence in the record
supports the Commissioner’s decision and (2) whether the decision comports with proper legal standards. See Villa
v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). “Substantial evidence is ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994)
(quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)). “It is more than a mere
scintilla, and less than a preponderance.” Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993) (citing Moore v.
Sullivan, 919 F.2d 901, 904 (5th Cir. 1990)). “A decision is supported by substantial evidence if ‘credible evidentiary
choices or medical findings support the decision.’” Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018) (citations
omitted). The court must be careful not to “reweigh the evidence or substitute . . . [its] judgment” for that of the ALJ,
see Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988), even if it finds that the evidence preponderates against the
Commissioner's decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); Harrell v. Bowen, 862 F.2d 471, 475
(5th Cir. 1988).
Case: 1:20-cv-00149-JMV Doc #: 21 Filed: 09/01/21 2 of 6 PageID #: 848
inaccurate in relation to the testimony regarding Plaintiff’s migraine headaches and in regard to
Dr. Moss’s report.
Discussion2
By way of background, the ALJ found, following a hearing on July 10, 2019, that the severe
impairments from which the Plaintiff suffered were “migraine headaches; undifferentiated
connective tissue disease with lupus features; degenerative disc disease of the lumbar spine;
depression; and generalized anxiety disorder.” Tr. 25. The ALJ found that as a result of these
severe impairments, the Plaintiff did not meet a listing. Tr. 26.
The ALJ determined that Plaintiff had the residual functional capacity to perform light
work as defined in 20 C.F.R. § 404.1567(b) except that the Plaintiff can occasionally climb and
balance, and frequently handle and finger. The Plaintiff is limited to simple repetitive work with
occasional public contact and no fast-paced work, such as production work. Tr. 28. At step four,
the ALJ determined that:
Plaintiff could not perform her past relevant work as a human
resource clerk, ticket clerk, or administrative assistant. Tr. 32. At
step five, the ALJ determined that, based on Plaintiff’s RFC,
vocational profile, and VE testimony, Plaintiff could perform the
jobs of laundry folder and housekeeper, which each exist in the
national economy in significant numbers.
Plaintiff requested review by the Appeals Council and submitted a MSS, dated October 11,
2019. The AC declined to review stating that they “found no reason under our rules to review the
[ALJ]’s decision.” Further, the AC found that the Medical Source Statement completed by the
primary treating physician, Dr. Castillo, was dated October 11, 2019, which was after the hearing
2
The 12-page Chronological Summary of Relevant Information and Medical Treatment set forth by the Plaintiff in
her briefing is, in the interest of efficiency, incorporated by reference herein. (A complete medical summary can be
found in the Transcript, pages 297-313).
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decision, and did not relate to the period at issue. Thus, it was not reviewed by the AC pursuant to
20 C.F.R. § 404.970(a)(5).
I.
First Argument
In support of her first assignment of error, the Plaintiff asserts that the Medical Source
Statement from Dr. Castillo “clearly indicates that it relates to the past relevant period” and clearly
indicated her problems, and associated limitations, during the relevant period, were more severe
than the ALJ, Dr. Saddler, or Dr. Dees [both state agency physicians] identified. [19]. According
to the Plaintiff, the failure to analyze the MSS leaves the findings incomplete as it leaves as the
only physicians relied upon by the ALJ, Drs. Saddler and Dees, who reviewed only 50 pages of
over 400 pages of the Plaintiff’s medical records.
In opposition to these arguments, the Commissioner asserts that “nothing in this checkmark form indicates it relates to her condition during the relevant period.” Tr. 16-19. As such, the
Commissioner asserts it is irrelevant and does not satisfy Plaintiff’s burden pursuant to 20 C.F.R.
§ 404.970(a)(5) to show that the evidence in question is new, material, and relates to the period on
or before the ALJ’s decision. Nor does it “demonstrate a reasonable probability that the additional
evidence would change the outcome of the decision.” 20 C.F.R. § 404.970(a)(5). [19].
In the court’s opinion, there was no legal error in the AC’s decision that the MSS, dated
two (2) months after the ALJ’s decision, was not properly reviewable by it. 20 C.F.R. § 404.970
provides in relevant part:
404.970 Cases the Appeals Council will review.
(a) The Appeals Council will review a case at a party's request or on
its own motion if….
(5) Subject to paragraph (b) of this section, the Appeals Council
receives additional evidence that is new, material, and relates to the
period on or before the date of the hearing decision, and there is a
reasonable probability that the additional evidence would change the
outcome of the decision.
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In the instant case, the subject MSS is not only dated approximately two (2) months after
the ALJ’s unfavorable decision, nowhere does it recite that it covers anything other than the
Plaintiff’s then current limitations. In as much as it would require pure speculation to surmise that
there had been no change in Plaintiff’s medical condition and resulting limitations over the two
months since the relevant period ended, the MSS fails to satisfy the requirements for AC
consideration under 20 C.F.R. § 404.970(a)(5).
II.
Second Argument
When discussing the migraines, the ALJ stated that Plaintiff had “learned to function
during a migraine” and that the medication reduced the intensity of the migraines. Tr. 29. The ALJ
further stated that the migraines were “resolved after the Plaintiff took a migraine cocktail.” Tr.
30. The Plaintiff argues that these findings are a mischaracterization of the actual evidence.
[Plaintiff] did testify that she “had learned to function” but that the
migraine cocktail, given to her situationally at the hospital, allowed
her to “actually stay awake” and that she typically has “to sleep,
just—I mean, the medication that I take just basically knocks me out
to be able to tolerate a migraine.” [Plaintiff] did not state that she
was able to completely function with a headache. Nor did she
indicate that she would work or even perform most of her ADL’s.
In response to these arguments the Commissioner asserts:
The ALJ found that Plaintiff’s migraine headaches constituted a
severe impairment, and discussed the evidence related to this
condition, finding that Plaintiff was able to function despite her
migraine headaches and that medication largely controlled them.
Plaintiff testified that her migraine headaches “never go away” but
that a migraine cocktail “eased it enough that I could actually stay
awake.” She went on to testify that she takes a preventative
medication that “helps with it” and another medication, Maxalt, for
“when the pain is getting strong,” indicating that even if she has
migraines that “never go away,” medication is able to control her
headaches. Plaintiff’s objective medical evidence shows that
medication controls her migraines and she does not experience the
extreme medication side effects she claimed. For example, Dr.
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Castillo’s records throughout the relevant period contain no
complaints of uncontrolled migraines or that she was “constantly”
taking migraine medication leading to extreme side effects.
Although Plaintiff complained of a headache (along with several
other complaints) on September 13, 2018, Dr. Castillo did not
modify treatment. While Plaintiff complained of a “daily headache”
since her hospital discharge for viral meningitis in January 2019, she
later admitted on April 29, 2021 that her headaches were “much less
severe.” Dr. Castillo also noted that her Carbamazepine, used for
treating fibromyalgia, “is also good in controlling her migraine
headaches” as of June 2019. . . . The evidence shows that on
December 31, 2018, Plaintiff sought treatment at the hospital for a
number of complaints, including a headache, but after a drug
cocktail and treatment for viral meningitis, she was discharged on
January 7, 2019, without further complaints of migraines. The ALJ
did not err when he noted that the drug cocktail resolved her
headache.
In sum, the Commissioner argues that the ALJ properly considered Plaintiff’s migraine
symptoms. The court agrees that, as outlined by the Commissioner, the ALJ committed no legal
or prejudicial error with reference to the assessment of Plaintiff’s headaches and further that, as
illustrated above, there is substantial evidence to support the RFC with regard thereto.
III.
Third Argument
As concerns Plaintiffs’ final argument, namely that the ALJ committed legal error because,
[t]he testing [by Dr. Moss] indicated that [Plaintiff] had an IQ of 61.
That this test was valid and that this was consistent with [Plaintiff]’s
SPED high school education. Therefore, [t]his should have been
found as a severe impairment. Then it should have been analyzed
for a listing (12.05), then if found not to meet a listing it should have
been incorporated into the limitations.
In response, the Commissioner asserts that, as the ALJ pointed out, Dr. Moss specifically
noted that Plaintiff’s insufficient effort during testing resulted in the subject test results [aside from
two specific tests, not including the aforementioned IQ test] being invalid.
Having reviewed the report of Dr Moss, the court finds that, indeed, the IQ test score on
which Plaintiff relies for this assignment of error was found by Dr Moss to be invalid. As such,
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Plaintiff has not demonstrated the occurrence of the alleged error on this point. In short, the ALJ
did not err by not recognizing an additional impairment based on the invalid testing results
obtained by Dr. Moss.
For the foregoing reasons, the court finds that the Plaintiff’s assignments of legal error are
without merit and that the RFC is supported by substantial evidence in the record. Therefore, the
decision of the Commissioner is hereby AFFIRMED.
SO ORDERED AND ADJUDGED this 1st day of September, 2021.
/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE
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