Coleman v. Colvin

Filing 19

MEMORANDUM OPINION. Signed by Magistrate Judge S. Allan Alexander on 9/10/14. (bnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
JIMMY LEE COLEMAN

PLAINTIFF

vs.

CIVIL ACTION NO. 3:14CV5-SAA

COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

MEMORANDUM OPINION
Plaintiff Jimmy Lee Coleman has filed suit under 42 U.S.C. § 405(g) seeking judicial
review of the decision of the Commissioner of Social Security denying his applications for a
period of disability (POD) and disability insurance benefits (DIB) under Sections 216(I) and 223
of the Social Security Act and for supplemental security income (SSI) payments under Section
1614(a)(3) of the Act. Plaintiff protectively filed an application for benefits on February 23,
2011 alleging disability beginning on May 8, 2009. Docket 10, p. 112. His claim was denied
initially on April 12, 2011, and upon reconsideration on June 8, 2011. Id. at 56-64. He filed a
request for hearing and was represented by counsel at the hearing held on August 16, 2012. Id. at
22-52. The Administrative Law Judge (ALJ) issued an unfavorable decision on August 30, 2012,
and on November 8, 2013, the Appeals Council denied plaintiff’s request for a review. Id. at 1-4.
Plaintiff timely filed the instant appeal from the ALJ’s most recent decision, 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 July 26, 1951, has an eleventh grade education and received his
GED in the mid 1970s. Docket # 10, p. 28-29, 112. He was sixty-one years old at the time of the
hearing. Id. at 28. Plaintiff’s past relevant work was as a window installer and a truck driver.
Id. at 29. Plaintiff contends that he became disabled before his application for benefits as a result
of migraine headaches, a back injury and wrist pain. Id. at 30, 35, 36, 38.
The ALJ noted that although plaintiff had medically determinable impairments, including
“a history of fracture of the right distal radial styloid, a history of back disorder, depression,
premature ejaculation, and headache” (Docket 10, p. 13), none of these impairments constituted a
“severe impairment or combination of impairments” under 20 CFR 404.1521, et seq., or 416.921,
et seq. Id. at 22. The ALJ went on to explain his finding that plaintiff was less than fully
credible in describing the intensity, persistence and limiting effects of his claimed symptoms. Id.
at 24. After evaluating all of the evidence in the record, including testimony of plaintiff, the ALJ
held that plaintiff’s “physical and mental impairments, considered singly and in combination, do
not significantly limit the ability to perform basic work activities.” Id. at 18. As a result, the
ALJ concluded that plaintiff is not disabled under the Social Security Act. Id.
Plaintiff claims that the ALJ erred because he did not properly evaluate the severity of
plaintiff’s impairments, the plaintiff’s credibility or the medical opinions in the record from Drs.
Clark, Steuer, Coleman and Shearin.
II. STANDARD OF REVIEW
In determining disability, the Commissioner, through the ALJ, works through a five-step

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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 his burden at
each of the first four levels, then the burden shifts to the Commissioner at step five.2 First,
plaintiff must prove he is not currently engaged in substantial gainful activity.3 Second, plaintiff
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 plaintiff 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, §§ 1.00-114.09 (2010).5 If plaintiff
does not meet this burden, at step four he must prove that he is incapable of meeting the physical
and mental demands of his 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 he 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 he

1

See 20 C.F.R. §§ 404.1520, 416.920 (2010).

2

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

3

20 C.F.R. §§ 404.1520(b), 416.920(b) (2010).

4

20 C.F.R. §§ 404.1520(c), 416.920(c) (2010).

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20 C.F.R. §§ 404.1520(d), 416.920(d) (2010). 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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20 C.F.R. §§ 404.1520(e), 416.920(e) (2010).

7

20 C.F.R §§ 404.1520(g), 416.920(g) (2010).
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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 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

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 (5th Cir. 1988).
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[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
Plaintiff contends the ALJ erred by finding all of his impairments to be non-severe. The
Commissioner argues to the contrary, but does not address whether the ALJ followed the proper
analysis in reaching that conclusion. The ALJ stated:
“[t]he claimant does not have an impairment or combination of impairments that
has significantly limited (or is expected to significantly limit) the ability to
perform basic work-related activities for 12 consecutive months; therefore, the
claimant does not have a severe impairment or combination of impairments (20
CFR 404.1521 et seq. and 416.921 et seq.).”
Docket 10, p. 14. In the Fifth Circuit, “[a]n impairment can be considered as not severe only if it
is a slight abnormality having such minimal effect on individual that it would not be expected to
interfere with the individual’s ability to work, irrespective of age, education or work experience.”
Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985). In addition, the severity determination is
to be made based solely on medical factors, not on vocational factors. See id. n.4 citing Lofton v.
Schweiker, 653 F.2d 215, 217 (5th Cir. 1981); 20 C.F.R. 404.1529(d)(1), 416.929(d)(1). “Step
two is a threshold inquiry; [o]nly slight trivial impairments that would clearly not be expected to
interfere with the individual’s ability to work, irrespective of age, education or work experience
are not severe at this step.” Sheffield v. Commissioner of Social Sec., 513 Fed. Appx. 840, 84142 (11th Cir. 2013). In this Circuit, the step two inquiry is a “de minimis” substantive
requirement, and it should rarely be used to deny benefits. Stone v. Heckler, 752 F.2d at 1106;
Garza v. Heckler, 771 F.2d 871, 874 (5th Cir. 1985). Although the Stone Court stated its
intention to require that in the future ALJs must reference the Stone standard in opinions, it has
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since held that a simple failure to reference the standard may be harmless error where a claimant
has been unable to show any functional limitations from his medical impairments. See Taylor v.
Astrue, 706 F.3d 600, 603 (5th Cir. 2012).
Because concluding an evaluation of a plaintiff’s claim at Step Two of the sequential
evaluation procedure is unusual, the court has pored over the medical records in this action to
satisfy itself that the ALJ’s legal analysis was correct and his decision supported by substantial
evidence; the court concludes that the decision in fact is not supported by substantial evidence.
In making his “non-severity” finding, the ALJ quoted from the regulations rather than
specifically quoting the language of Stone except, for some reason, in reference to plaintiff’s
hypertension and premature ejaculation.11 Id. at 16. The ALJ made no mention of Stone or the
Stone standard when he addressed plaintiff’s migraine headaches, depression or back pain. Even
though the ALJ’s failure either to quote from or cite to Stone, in and of itself, does not require
remand, the court finds problematic that his analysis of the severity factor appears to be based,
not upon medical evidence as required by Stone, but upon his evaluation of the plaintiff’s
limitations.
The ALJ made no mention of plaintiff’s treating physicians’ opinions regarding his
impairments, specifically his headaches and back pain. The only physician the ALJ mentioned in
his opinion was the consulting physician, Dr. Robert Shearin, whose opinion was given “little
weight” because it was “only partly confirmed by objective findings . . .” Docket 10, p. 17. The
Commissioner did not provide Dr. Shearin with any of plaintiff’s medical records, so Dr. Shearin

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Impairments, incidentally, which plaintiff himself does not appear ever to have raised
as providing any basis for his claim for benefits.
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could not have utilized the “objective findings” such as MRIs or other tests performed to support
his opinion. Instead, he had to rely upon the evidence he obtained during the examination. It
was inappropriate for the ALJ to discount the examining physician’s opinion simply because he
did not have the benefit of the records that the ALJ failed to provide to him.
The ALJ repeatedly referred to plaintiff’s failure to obtain treatment as evidence that his
impairments are not as severe as he asserts. Docket 10, p. 16. As to plaintiff’s back pain, the
ALJ noted that “the claimant’s treatment records document no complaints concerning or
treatment for his back problems after July of 2009, while the claimant did seek treatment for a
variety of other conditions which indicate that the claimant’s back problems have not been
persistent.”12 Id. at 15. However, the record contains evidence of at least one other visit to the
treating physician for continuing back pain in November 2010. Id. at 231. In fact, the ALJ used
plaintiff’s failure to obtain treatment as an explanation for why almost every impairment is not
severe without acknowledging plaintiff’s testimony that he has not had insurance since 2009 and
has been unable to afford treatment.
The medical records clearly indicate that plaintiff was advised to take prescription
antidepressants, but advised the physician that he could not afford the prescription. Docket 10, p.
227. Additionally, during the hearing, plaintiff advised the ALJ that he wanted to obtain other
treatment, but because he did not have any insurance after 2009, he could not afford the
treatment. The court is troubled by the ALJ’s failure to consider plaintiff’s lack of funds and

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The only “treatment for a variety of other conditions” during the relevant period to
which the ALJ could have been referring was treatment for a broken wrist received in an
automobile accident [Docket 10, p. 231-54] – hardly conclusive evidence that plaintiff picked
and chose the ailments he wished to see treated.
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access to medical treatment as a real issue and impediment to remedying his conditions. That
plaintiff could not afford treatment and obtained little to no treatment for his claimed
impairments after he lost insurance should not be held against him. In the rural area of this
district where plaintiff lives, there may be little or no access to free medical treatment. Because
the court is remanding the case so that the ALJ can apply the appropriate legal standard at step
two, the court will not consider whether the Commissioner’s decision on this issue is supported
by substantial evidence, though additional, in-depth review of plaintiff’s claims is surely
warranted upon remand.
IV. CONCLUSION
The Commissioner’s denial of benefits will be remanded for additional review in
accordance with this opinion. A final judgment in accordance with this memorandum opinion
will issue this day.
SO ORDERED, this, the 10th day of September, 2014.

/s/ S. Allan Alexander
UNITED STATES MAGISTRATE JUDGE

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