Ware v. Commissioner of Social Security
Filing
18
MEMORANDUM OPINION. Signed by Magistrate Judge S. Allan Alexander on 12/3/2014. (lmf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
TERESA WARE
PLAINTIFF
vs.
CIVIL ACTION NO. 3:14-cv-082-SAA
CAROLYN W. COLVIN,
COMMISSIONER OF SSA
DEFENDANT
MEMORANDUM OPINION
Plaintiff Teresa Ware seeks judicial review under 42 U.S.C. § 405(g) of a decision by the
Commissioner of Social Security denying her application for Supplemental Security Income (SSI)
under Title XVI of the Social Security Act. Docket 10, p. 67-77. Ware filed her application on
September 27, 2011, asserting an onset date of February 1, 2011. Docket 10, p. 67. The
Commissioner denied her claim initially and on reconsideration. Docket 10, pp. 30-33, 36-37.
Plaintiff challenged the denial of benefits and requested a hearing before an Administrative Law
Judge (ALJ). Docket 10, pp. 38. She was represented by an attorney at the administrative
hearing on July 23, 2013. Docket 10, p. 257. The ALJ issued an unfavorable decision on
September 23, 2013. Docket 10, p. 15-25. The Appeals Council denied her request for review.
Docket 10, p. 6-10. Because both parties have consented to have a magistrate judge conduct all
the proceedings in this case under 28 U.S.C. § 636(c), the undersigned has the authority to issue
this opinion and the accompanying final judgment.
I. FACTS
Plaintiff was born on November 7, 1972 and was forty years old on the date of the hearing
before the ALJ. Docket 10, p. 262. She dropped out of school in the 8th grade. Docket 10, p. 263.
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She was previously employed as a grill cook. Docket 10, pp. 104, 288. She claims disability from
asthma, high blood pressure, back problems, arthritis, and panic attacks. Docket 10, pp. 104, 288.
The ALJ determined that plaintiff suffers from “severe” impairments of obesity and
arthritis. Docket 10, pp. 15-17. Despite finding she had these severe impairments, the ALJ
determined that plaintiff does not have an impairment or a combination of impairments that meet
or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1.
Docket 10, p. 17, Finding No. 3. The ALJ examined the evidence in the record, including the
records and opinions of the consultative examiner Dr. Robert Shearin, hospital records, and
medical records from the Aaron Henry Community Health Clinic, mental health professional Dr.
Pamela Buck and non-examining state agency consultant Dr. Robert Culpepper. This evidence,
along with the plaintiff’s testimony and an adult function report completed by the plaintiff, led the
ALJ to conclude that plaintiff’s residual functional capacity [RFC] includes:
the residual functional capacity to lift or carry ten pounds occasionally, less that
ten pounds frequently; stand or walk for two hours out of an eight-hour work day;
and sit for six hours out of an eight-hour workday. The claimant may never climb
ladders, ropes, or scaffolds; but may occasionally climb ramps or stairs;
occasionally stoop, crouch, kneel, or crawl; and must avoid concentrated exposure
to environmental irritants.
Docket 10, p. 17, Finding No. 4. In reaching this RFC decision the ALJ found the plaintiff’s
subjective complaints less than fully credible and that her allegations of stringent functional
limitations were disproportionate to the objective medical evidence. Docket 10, pp. 19-21.
The ALJ found that even though this RFC left plaintiff unable to perform her past relevant
work [Docket10, p. 21, Finding No. 5], in light of testimony from a vocational expert (VE) and
plaintiff’s age, education, work experience and RFC, jobs exist in significant numbers in the
national economy that plaintiff could perform, including charge account clerk, DOT number 2052
367-014 ; surveillance monitor, DOT number 379.367-010; and an eyeglass inserter, DOT
number 713.687-026. Docket 10, p. 24, Finding No. 9.
Plaintiff now appeals to this court. She contends the ALJ’s RFC for plaintiff is not
supported by substantial evidence because the ALJ did not properly evaluate plaintiff’s asthma, or
her obesity or the medical source statement from Dr. Robert Shearin, M.D. In addition, plaintiff
argues that the ALJ was required to make a separate finding regarding whether the plaintiff was
capable of maintaining work. Docket 16.
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 [her] 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
1
See 20 C.F.R. § 416.920 (2010).
2
Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999).
3
20 C.F.R. § 416.920(b) (2010).
4
20 C.F.R. § 416.920(c) (2010).
5
20 C.F.R. §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.”
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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.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). It is the court’s responsibility to scrutinize
the entire record to determine whether the ALJ’s decision was supported by substantial evidence
and whether the Commissioner applied the proper legal standards 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 re-weigh 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 In the Fifth Circuit
substantial evidence is “more than a scintilla, less than a preponderance, and is such relevant
20 C.F.R. § 416.925 (2003).
6
20 C.F.R. § 416.920(e) (2010).
7
20 C.F.R. § 416.920(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 (5th Cir. 1988).
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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 proper 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
1.
Evaluation of Plaintiff’s Asthma
In his decision, the ALJ summarized plaintiff’s testimony regarding her claim that she is
impaired by asthma and discussed the medical records relating to bronchial problems. He
concluded that “[w]hile the record establishes a history of asthma, without evidence of related
functional limitations, the undersigned finds the claimant’s asthma is non-severe.” Docket 10, p.
18, citing Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985). Docket 10, p. 19. Plaintiff argues that
the ALJ erred by not finding “the asthma of which the claimant complained a great deal to be a
severe impairment. . . . He failed to acknowledge that the Plaintiff had what he considered to be
non-severe impairments as provided under Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985).”
Docket 16, p. 6. Pointing only to her testimony, subjective complaints, and medical records from
an emergency room visit, all of which the ALJ discussed in his opinion, plaintiff contends that her
asthma should have been determined a “severe impairment.”
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Social Security Regulations define a severe impairment as one “which significantly limits
[a plaintiff’s] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c).
The Fifth Circuit found that a literal application of that definition is inconsistent with the statutory
language and legislative history of the Social Security Act. Stone v. Heckler, 752 F.2d 1099,
1101 (5th Cir.1985). Instead, the Fifth Circuit says, “an impairment is not severe only if it is a
slight abnormality having such minimal effect on the individual that it would not be expected to
interfere with the individual’s ability to work.” Stone v. Heckler, 752 F.2d 1099, 1101 (5th
Cir.1985); see also Loza v. Apfel, 219 F.3d 378, 391 (5th Cir.2000). Using this step two
argument of semantics, the plaintiff contends the ALJ did not correctly apply the standards in
concluding plaintiff’s asthma was not severe. See Sanders v. Astrue, 2008 WL 4211146, *6 (N.D.
Tex. Sept. 12, 2008), citing Loza, 219 F.3d at 393; Stone, 752 F.2d at 1106. Despite plaintiff’s
attempts to ignore the ALJ’s reference to correct standards and citation to the Stone decision, the
court cannot overlook that the ALJ did, in fact, properly apply the appropriate legal standards.
Even if the ALJ had omitted direct citations to Stone, the Fifth Circuit has since held that it is not
necessary to remand a case simply because the ALJ did not use “magic words;” remand is
required only where there is no indication the ALJ applied the correct standard. White v. Astrue,
2009 WL 763064 (N.D. Tex. Mar. 23, 2009) citing Hampton v. Bowen, 785 F.2d 1308, 1311 (5th
Cir.1986).
In this case, the ALJ’s decision not only reflect that he thoroughly considered the medical
evidence and plaintiff’s testimony and properly determined her asthma to be non-severe (and
quoted all necessary standards), but also that he continued the evaluation process though all five
steps, including plaintiff’s non-severe asthma in these findings. The ALJ included in his RFC
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finding that plaintiff “must avoid concentrated exposure to environmental irritants,” [Docket 10,
p. 1], and his hypothetical questions to the vocational expert (VE) included the need to avoid
concentrated exposure to environmental irritants such as fumes, odors, dust and gases, . . .”
Docket 10, pp. 288-289.
A plaintiff’s subjective complaints, alone, are insufficient to establish a disability. See 20
C.F.R §§ 416.928(a), 416.929(a). In determining whether a plaintiff is disabled, the ALJ must
consider the extent to which a plaintiff’s alleged symptoms can be reasonably accepted as
consistent with the objective medical evidence and other evidence. Id. The ALJ in this case
properly evaluated the subjective complaints and the medical evidence and properly questioned a
VE. Following the appropriate standards and procedures, he determined plaintiff’s allegations of
severe asthma were inconsistent with the medical evidence. Moreover, he did not ignore the nonsevere impairment, but included it in plaintiff’s RFC and his hypothetical questions to the VE.
The court does not find error in the ALJ’s consideration of the evidence, his RFC determination,
or his decision.
2.
ALJ’s consideration of Dr. Shearin’s Medical Source Statement
Dr. Robert Shearin conducted a consultative examination of the claimant on August 2,
2012. In discussing Dr. Shearin’s medical records and his stated opinions the ALJ ultimately
determined that the doctor’s opinions regarding plaintiff’s functional abilities were at odds with
his own medical records:
Dr. Shearing personally examined the claimant and submitted records consistent
with his objective findings. Accordingly, the undersigned accords substantial
weight to Dr. Robert Shearin’s objective findings. However, the undersigned
accords little weight to Dr. Shearin’s medical source statement as it is unsupported
by Dr. Shearin’s findings or the record as a whole.
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Docket 10, pp. 21-23. In sum, the ALJ considered the opinions of Dr. Shearin, who was
consultative examiner and not a treating physician, and finding that his opinions were based to a
great extent on the plaintiff’s subjective complaints, discounted those opinions in favor of
evidence that was unequivocally supported by objective medical findings. Plaintiff argues that
because “the ALJ in making his findings was reviewing the same evidence that Dr. Shearin had
and came to a different conclusion [the ALJ was] ‘playing doctor.’” Docket 16, p. 10. She
contends that the ALJ’s selective reliance on some opinion evidence in the record, but not Dr.
Shearin’s medical source statement, is inappropriate “cherry picking” to select opinions that
support his conclusions.
In the Fifth Circuit, an ALJ must consider all medical opinions in determining the
disability status of a benefits claimant. Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000); 20
C.F.R. §§ 404.1527(b), 416.927(b). Nonetheless, opinions on ultimate issues, such as disability
status under the regulations, are reserved exclusively to the ALJ. Id. at 455; 20 C.F.R. §§
404.1527(e)(1), 416.927(e)(1). Statements by medical sources to the effect that a claimant is
“disabled” are not dispositive, but an ALJ must consider all medical findings and evidence that
support those statements. Id.; see also Alejandro v. Barnhart, 291 F. Supp. 2d 497, 507 (S.D.
Tex. 2003). Further, it is the responsibility of an ALJ to resolve conflicting medical opinions in
arriving at a supported RFC finding. Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002)
(conflicts in evidence are for the Commissioner and not the courts to decide.).
It is appropriate for an ALJ to discredit a plaintiff’s subjective complaints in the face of
contradictory medical reports or reports of daily activities. Griego v. Sullivan, 940 F.2d 942, 945
(5th Cir. 1991). “The law is clear that although the opinion of an examining physician is
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generally entitled to more weight than the opinion of a non-examining physician, the 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), citing Oldham v. Schweiker, 660 F.2d 1078, 1084
(Former 5th Cir. Unit B 1981) (rejecting conclusory statement of treating physician in favor of
conclusions of reviewing physician). Following this reasoning, the Fifth Circuit has held that an
ALJ is free to choose among the conclusions of examining physicians. Bradley, 809 F.2d at 1057.
In this case, the ALJ clearly detailed Dr. Shearin’s findings and the plaintiff’s complaints.
He also pointed to specific contradictions between the subjective complaints and medical
evidence, including Dr. Shearin’s own medical reports.
Despite the claimant’s complaints of standing, walking and sitting
limitations, the record evidence fails to affirm her allegations. Consultative
examiner, Dr. Robert Shearin noted upon physical examination that the claimant
was able to walk heel to toe without stumbling or loss of balance. She could
forward flex, extend, lateral flex, and rotate without difficulty. Squatting elicited
pain in the claimant’s knees. The claimant performed finger to nose maneuvers
but complained of left shoulder pain while doing so. The claimant was able to
walk on her heels and toes. Strength and symmetry of all muscle groups were
normal. Abduction of her left shoulder to 75 degrees and flexion to 90 degrees
elicited pain. Full range of motion with abduction and flexion was not as painful
on the right. The claimant was able to go through full range of motion of the
knees. X-rays of the lumbar spine revealed degenerative facet disease involving
the lower lumbar spine which likely accounts for the very mild malalignment at
L4/L5 (Exhibit 6F). . . .
Dr. Robert Shearin formed the impression of reported chronic back pain
with few supportive findings; . . . . He also assessed if the claimant’s left shoulder
pain was relieved, the claimant appeared capable of carrying out work related
activities that require sitting, standing, walking, for ten minutes or less or lifting
carrying and handling objects. . . . He also noted that appearing viably obese, the
claimant appeared comfortable standing, sitting and reclining and ambulation was
normal.
Docket 10, p. 21. After reviewing the records as a whole and properly determining plaintiff not
entirely credible, the ALJ reconciled Dr. Shearin’s medical opinion with the objective medical
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findings in the case. This exercise was entirely within the purview of the ALJ; it is not “playing
doctor,” but carrying out his duties in making supported determinations within the framework of
the case. The court is obliged to grant deference to the ALJ regarding these determinations.
Leggett, 67 F.3d at 564. The court finds that ALJ acted within the scope of his authority and
properly detailed his reasons for affording lesser weight to Dr. Shearin’s medical source
statement.
3.
Obtaining and Maintaining Employment
The plaintiff contends that the ALJ was required to make a finding that the plaintiff not
only could obtain, but could also maintain employment for significant periods of time, and that
his failure to do so is an error that requires remand. In making her argument, plaintiff cites Fifth
Circuit case law11 and SSR96-8p, but does not cite to either of two later Fifth Circuit cases,12 both
of which point out that the issue of whether a plaintiff can maintain employment for a period of
time may be addressed within the analysis regarding plaintiff’s ability to obtain employment.
Frank v. Barnhart, 326 F.3d 618, 619 (5th Cir. 2003). In addition, the Frank court specifically
held that it is not necessarily error for an ALJ to fail to make a separate and specific finding
addressing the plaintiff’s ability to maintain employment. See Frank, 326 F.3d at 621. In any
event, plaintiff identifies no specific reason or any evidence to support an assertion that she would
not be able to maintain employment. Instead she simply argues that without a specific finding to
that end, the case must be remanded. This is simply an incorrect assertion, and her argument
11
Moore v. Sullivan, 895 F.2d 1065, 1069 (5th Cir. 1990) and Myers v. Apfel, 238 F.3d
617, 621 (5th Cir. 2001).
12
Watson v. Barnhart, 288 F.3d 212, 218 (5th Cir. 2002) or Frank v. Barnhart, 326 F.3d
618, 619 (5th Cir. 2003).
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must fail.
4.
Evaluation of Plaintiff’s Obesity
According Social Security Ruling 02-1p, “[o]besity can cause limitation of
function.” SSR-02-1p, p. 6. Potential limitations include deterioration or impairment “in any of
the exertional functions such as sitting, standing, walking, lifting, carrying, pushing, and pulling,”
as well as an individual’s “ability to do postural functions, such as climbing, balance, stooping,
and crouching.” Id. Finally, “[t]he ability to tolerate extreme heat, humidity, or hazards may also
be affected.” Id. The Ruling acknowledges that often obesity may affect an individual in a less
than obvious manner, “[f]or example, some people with obesity also have sleep apnea.” Id. As a
consequence, the ruling requires an ALJ to assess the effect obesity has upon the individual’s
ability to perform routine movement and necessary physical activity within the work
environment, taking into account fatigue or other combined effects of obesity which, with other
impairments, may be greater than might be expected without obesity. Id. The plaintiff argues
that although the ALJ determined plaintiff’s obesity was a severe impairment, he then failed to
evaluate it further and “brushed aside any of its effects. . . , ” thus rendering the decision flawed
and requiring remand. Docket 16, p. 17.
In this case, the ALJ found at step two plaintiff’s obesity was a severe impairment.
Docket 10, p. 17, Finding No.2. At step three, he found that the plaintiff did not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Docket 10, p. 19, Finding
No.3. At step four, the ALJ determined plaintiff’s RFC to be generally in a sedentary range with
some limitations. Docket 10, p. 19, Finding No. 4. In his analysis, the ALJ discussed the
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plaintiff’s obesity and noted that although it is a documented medical issue, it does not appear to
have ill effects; in fact, during Dr. Shearin’s examination, plaintiff was “visibly obese, [yet]
appeared comfortable standing, sitting and reclining and ambulation was normal.” Docket 10, p.
21. The ALJ also noted plaintiff was able to grocery shop and help with the laundry. Docket 10,
p. 22.
Ruling 02-1p advises that “there is no specific level of weight or BMI that equates with a
‘severe’ or ‘non-severe’ impairment.” SSR 02-1p, 2002 WL 34686281, *4. Although plaintiff
argues that her weight is equivalent or more than of that of the claimant in other social security
cases in which obesity was found to be a severe impairment, she misses the point that it is not the
number on the scale but the effects of the weight on the individual’s functioning and ability that
factors into the ALJ’s analysis.
In this case, the ALJ asked the plaintiff at the hearing about her weight. Docket 10, p.262.
The ALJ’s decision discussed plaintiff’s weight, her abilities to walk, sit, stand, and engage in
other postural activities and credited some of her stated limitations as a result of her obesity.
Docket 10, p. 21-23. The medical evidence in the record supports the ALJ’s findings, and the
plaintiff has pointed to no evidence other then her own subjective complaints and inapt
comparisons to other social security claimants to support her argument. The court deduces no
error in the ALJ’s decision.
IV. CONCLUSION
After thoroughly reviewing the evidence presented to the ALJ and to the Appeals Council
and the record as a whole, the court holds that the ALJ’s opinion applied the correct legal
standard and was supported by substantial evidence. The decision of the Commissioner is
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affirmed. A separate judgment in accordance with this Memorandum Opinion will issue this date.
SO ORDERED, this, the 3rd day of December, 2014.
/s/ S. Allan Alexander
UNITED STATES MAGISTRATE JUDGE
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