Bibbs v. Commissioner of Social Security
MEMORANDUM OPINION. Signed by Magistrate Judge S. Allan Alexander on 6/9/15. (mhf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
BILLY RAY BIBBS,
CIVIL ACTION NO. 3:14-CV-222-SAA
COMMISSIONER OF SOCIAL SECURITY,
Plaintiff Billy Ray Bibbs has applied for judicial review under 42 U.S.C. § 405(g) of the
Commissioner of Social Security’s decision denying his application for a period of disability
(POD) and disability insurance benefits (DIB) under Sections 216(I) and 223 of the Social
Security Act.1 Plaintiff protectively filed an application for benefits on March 29, 2011 alleging
disability beginning on March 27, 2009. Docket 9, pp. 209-15. The agency administratively
denied the plaintiff’s claim initially and upon reconsideration. Docket 9, pp. 150-53. Plaintiff
then requested an administrative hearing, which an Administrative Law Judge (ALJ) held on
May 23, 2013. Docket 9, p. 70. The ALJ issued an unfavorable decision on June 10, 2013
(Docket 9, pp. 5-26), and the Appeals Council denied plaintiff’s request for a review on August
11, 2014, Docket 9, p. 1. Plaintiff timely filed the instant appeal from the decision and it is now
ripe for review.
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.
Although plaintiff’s brief indicates that plaintiff also claims benefits for supplemental security
income (SSI) payments under Section 1614(a)(3) of the Act, it does not appear that he sought
SSI benefits at the administrative level.
Plaintiff was born November 26, 1963 and was forty-nine years old at the time of the
ALJ hearing. Docket 9, p. 74. He was previously employed as a maintenance and lawn care
worker for approximately eighteen years. Docket 9, p. 76. Plaintiff contends that he became
disabled before his application for benefits as a result of diabetes mellitus, diabetic neuropathy,
arthralgia, obesity, hypertension, carpal tunnel syndrome, and severe obstructive sleep apnea.
After reviewing the record as a whole, including the evidence and testimony provided,
the ALJ issued her unfavorable opinion on June 10, 2013. Docket 9, pp. 5-26. Within that
opinion, the ALJ determined that plaintiff had met the insured status requirement through
December 31, 2011. Docket 9, p. 10. In evaluating the plaintiff’s disability claim, the ALJ
proceeded through the Social Security Administration’s five-step sequential evaluation process.
20 C.F.R. 404.1520(a); see also Docket 9, pp. 8-26. From that process the ALJ determined that
through the date last insured (DLI) the claimant suffered from the “severe” impairments of
“diabetes mellitus, diabetic neuropathy, arthralgia, obesity, hypertension, and carpal tunnel
syndrome,” (Docket 9, p. 10), but that these impairments did not meet or medically equal a listed
impairment in 20 C.F.R. Part 404, Subpart P, App. 1 (20 CFR 404.1520(d), 404.1525, and
404.1526). Docket 9, p. 12.
Upon further analysis under the applicable rulings and regulations, the ALJ determined
that plaintiff was less than fully credible because his claimed symptoms, stated limitations and
subjective complaints—particularly concerning the intensity, persistence, and limiting effects of
those ailments—were not credible. Docket 9, p. 17. The ALJ similarly concluded that testimony
from plaintiff’s wife warranted little weight because that testimony was not supported “by the
objective or clinical medical evidence or with the activities of daily living described during [a]
June 2011 consultative examination” of Dr. Justin Brewer. Docket 9, p. 19. The ALJ also
elected to assign little weight to testimony provided by the plaintiff’s brother in the form of a
written letter because he was “not a disinterested third party and disabling pain and functional
limitations are not well supported by objective medical findings.” Docket 9, p. 18.
The plaintiff claims the ALJ erred in (i) her credibility findings based on an incorrect
assessment of plaintiff’s testimony about his driving habits and her rejection of the plaintiff’s
brother’s statements; (ii) formation of the plaintiff’s RFC, and (iii) relying on improper VE
testimony concerning the dictionary of occupational titles.
In determining disability, the Commissioner, through the ALJ, works through a five-step
sequential evaluation process. See 20 C.F.R. § 404.1520. The burden to prove disability rests
upon plaintiff through the first four steps of the process and if plaintiff is successful in sustaining
his burden at each of the first four levels, the burden then shifts to the Commissioner at step five.
See Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999). First, the plaintiff must prove he is not
currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). Second, the plaintiff
must prove his impairment(s) are “severe” in that they “significantly limit his physical or
mental ability to do basic work activities . . ..” 20 C.F.R. § 404.1520(c). At step three the ALJ
must conclude that the 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). 20 C.F.R. § 404.1520(d). If the plaintiff does not meet this burden, at
step four he must prove he is incapable of meeting the physical and mental demands of his past
relevant work. 20 C.F.R. § 404.1520(e). Finally, at step five, the burden shifts to the
Commissioner to prove that, considering plaintiff’s residual functional capacity, age, education
and past work experience, she is capable of performing other work. 20 C.F.R § 404.1520(g). If
the Commissioner proves other work exists which plaintiff can perform, plaintiff is then given
the chance to prove that he cannot, in fact, perform that work. See Muse v. Sullivan, 925 F.2d
785, 789 (5th Cir. 1991).
STANDARD OF REVIEW
The court’s scope of review is limited. On appeal the court must consider whether the
Commissioner’s final decision is supported by substantial evidence and whether the correct legal
standards were applied. Crowley, 197 F.3d at 196, citing Austin v. Shalala, 994 F.2d 1170 (5th
Cir. 1993); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). In making that determination,
the court has the responsibility to scrutinize the entire record. 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, Hollis v. Bowen, 837 F.2d 1378, 1383 (5th
Cir. 1988), even if it finds the evidence leans against the Commissioner’s decision. See Bowling
v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); see also Harrell v. Bowen, 862 F.2d 471, 475 (5th
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, 197 F.3d at 197 (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 ALJ’s conclusions. See Richardson v.
Perales, 402 U.S. 389, 401 (1971); see also Crowley, 197 F.3d at 197. “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.
A. Whether the ALJ properly considered plaintiff’s credibility.
The ALJ found that the plaintiff was not a reliable witness and elected to give little
weight to the opinions of the plaintiff’s wife and brother. Docket 9, pp. 17-19. The plaintiff
contends that the ALJ erred in making those determinations because she made incorrect
assessments of testimony provided by all three of those people. Docket 13, pp. 7-14.
As to both plaintiff’s credibility determination and her decision to give little weight to the
plaintiff’s wife’s testimony, the ALJ found that plaintiff’s claimed disabilities were inconsistent
with his reported activities of daily living. She noted that although the plaintiff’s wife testified
as to the very limited and disabling nature of plaintiff’s abilities, the claimant testified that he
continues to “drive over 80 miles each wa[y] to Grenada, and wait there during the day with
friends while his wife works.” Docket 13, p. 7. In fact, the plaintiff actually testified that he
drove “16, 17 miles” each way to take his wife to work each day. The plaintiff claims this
mischaracterization of his testimony requires reversal of the ALJ’s decision. Docket 13, p. 99.
This claim is without merit however, as the mistake by the ALJ is protected under the harmless
error rule, which the Fifth Circuit has long followed in social security cases. See Mays v. Bowen,
837 F.2d 1362, 1364 (5th Cir. 1988), citing Carter v. Massey-Ferguson, Inc., 716 F.2d 344, 349
(5th Cir. 1983 (“Procedural perfection in administrative proceedings is not required” as long as
“the substantial rights of a party have not been affected.”). Furthermore, the Circuit has made
clear that the harmless error rule may be applied in the context of the ALJ’s credibility analysis
as well. See Frank v. Barnhart, 326 F.3d 618 (5th Cir. 2003). Thus, even though the ALJ
incorrectly reported plaintiff’s testimony regarding his daily driving in making her
determinations, that mistake is only grounds for reversal if it affected the substantial rights of the
plaintiff, which it did not here.
Plaintiff’s substantial rights were not affected because the ALJ’s determination that the
plaintiff’s claimed impairments were inconsistent with his activities of daily living was
substantially justified considering even the plaintiff’s actual testimony. Though the ALJ
incorrectly reported the number of miles the plaintiff testified he drove each day, the number of
miles does not appear to be the determinative factor in the ALJ’s credibility decision or her
decision to give little weight to the plaintiff’s wife’s opinion. Rather, the ALJ detailed the
plaintiff’s reported activities of daily living, which included his ability to drive a relatively long
distance each day as only one factor. The inconsistencies between those activities and the
alleged impairments claimed by both the plaintiff and his wife led to the ALJ’s ultimate
determination. See Docket 9, p. 13-20.
The claim that the ALJ made her determinations about credibility and the weight to give
to the witnesses’ testimony based solely on a misstatement of the amount of miles the plaintiff
reported having driven is plainly inaccurate. The fact that the plaintiff continued to take his wife
to work most days, wait for her while she worked, visited with friends and family or watched
television until she got off from work, and then drove them back home was just one of the
justifications for that finding. Docket 9, p. 17, 19. The substantial rights of the plaintiff were not
affected by this harmless error because the ALJ did not rely solely on that misreported piece of
testimony to reach her ultimate determinations. Instead, the ALJ relied on inconsistencies
contained in various medical opinions spanning several years and in the plaintiff’s testimony to
reach her credibility and weight determinations. See Docket 9, pp. 13-21.
For instance, the ALJ noted that the plaintiff’s medical records routinely and consistently
documented relatively normal motor strength, hand grip strength, ranges of motion, and the
ability to move about despite claiming otherwise. Docket 9, p. 17, 19. She also noted other
inconsistencies in the plaintiff’s medical treatment records; for example, plaintiff claims he
suffers from blurred vision, but there is no indication of treatment for that condition in his
medical records, and he has continuously reported that he drives and watches television regularly
without any problems. Docket 9, p. 17. She also noted that even though plaintiff alleges
rheumatoid arthritis, there are no objective medical signs, laboratory findings, or radiographic
evidence to support those claims in the records. Docket 9, p. 17.
The ALJ also discounted the plaintiff’s brother’s statement. The plaintiff asserts this was
error because the ALJ did not “acknowledge that she must consider all evidence, including that
of lay witness testimony.” Docket 13, p. 10. Plaintiff relies on SSR 06-3p, which provides that
opinions of family members, including siblings, can be used to show the severity of impairments.
SSR 06-3p certainly establishes that the opinions of family members may be used to establish the
severity of impairments, but it does not force ALJs to give those opinions significant weight.
The ALJ’s role is to weigh conflicts in the evidence; if there is substantial evidence to support
the decision, the court must affirm even if there is evidence on the other side. Selders, 914 F.2d
at 617. Contrary to the plaintiff’s assertion, the ALJ did not fail to acknowledge or consider the
brother’s opinion but simply declined to assign the opinion “great weight” when she considered
the opinion in light of all the other evidence presented. Docket 9, pp. 18-19. She found the
brother was “not a disinterested third party and disabling pain and functional limitations are not
well supported by objective medical findings.” Docket 9, pp. 18-19. Therefore, because
weighing the evidence is the ALJ’s role and because conflicts in the evidence are for the
Commissioner to decide, this claim is also without merit.
B. Whether the ALJ erred in forming the plaintiff’s RFC
The plaintiff claims the ALJ erred in several respects in formulating the plaintiff’s
Residual Functional Capacity (RFC). Docket 13, pp. 14-16. Upon judicial review, the ALJ’s
RFC determination is “granted great deference and will not be disturbed unless the reviewing
court cannot find substantial evidence in the record to support the Commissioner’s decision or
finds that the Commissioner made an error of law.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir.
1995); see also 42 U.S.C.A. § 405(g). According to plaintiff, because the ALJ did not explicitly
award significant weight to any medical opinion in forming the RFC, she must have substituted
her opinion for that of medical professionals. Docket 13, p. 14-16. Moreover, says plaintiff, the
ALJ should have ordered an additional consultative examination under 20 C.F.R. 404.1512(e)
because she failed to assign significant weight to any medical opinion. Docket 13, p. 16. The
court holds that the ALJ’s RFC determination was consistent with the evidence of record, and
she applied the proper legal standards.
The responsibility of determining the plaintiff’s RFC belongs to the ALJ. Ripley v.
Chater, 67 F.3d 552, 557 (5th Cir. 1995). In doing so, an ALJ 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 the claimant’s physical and mental limitations.
Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995). Despite the plaintiff’s claim, the ALJ is not
required to either grant significant weight to a medical opinion or order an additional
consultative examination. Here, the ALJ considered no less than four professional medical
sources in forming the plaintiff’s RFC.
First, the ALJ considered records provided by Dr. Williams Owens. Docket 9, p. 14.
Second, she considered in detail Dr. Jim Adams’s report of a 2009 consultative examination
where the bulk of his findings were relatively unremarkable. Docket 9, p. 15. Third, she
considered 2010 treatment records from North Mississippi Family Medicine Group. Docket 9, p.
16. There, the ALJ observed that despite the plaintiff’s subjective complaints, very little
objective medical evidence could be found to back up plaintiff’s alleged impairments. Docket 9,
p. 16. Fourth, and finally, the ALJ considered Dr. Justin Brewer’s consultative examination
which, yet again, was short on objective findings and was ultimately consistent with the ALJ’s
RFC determination. Docket 9, p. 16. Within that RFC, the ALJ properly considered the findings
of these medical sources and limited the Plaintiff to a modified range of light work. Docket 9, p.
17, 20. Because the ALJ properly considered the evidence as a whole, including various medical
opinions, and therefore was not required to order an additional consultative examination, the
court holds that the ALJ properly assessed the plaintiff’s RFC.
C. Whether the ALJ incorrectly relied on the VE’s testimony.
The plaintiff also asserts that the ALJ incorrectly relied on Vocational Expert (VE)
testimony in the formulating plaintiff’s RFC [Docket 13, p. 16-19] because there was an
unresolved conflict between the VE’s testimony and the Dictionary of Occupational Titles
(DOT). Docket 13, p. 19. The Commissioner contends, and the court agrees, that the ALJ
fulfilled her obligation to inquire as to whether the VE’s testimony would conflict with the DOT
and that there was no definitive conflict between the VE’s testimony and the DOT. Docket 14,
The plaintiff concedes that the ALJ asked the VE to explain any conflicts between her
testimony and the DOT, but argues the ALJ nonetheless relied on testimony that both conflicted
with the DOT and remained unresolved. Docket 13, p. 18. The plaintiff bases this claim that
there was conflicting testimony on the idea that “when the DOT is silent on the issue of the
alternating sitting and standing . . . this is an inherent conflict between the DOT and the [VE]’s
testimony.” Docket 13, p. 18. However, as this court has previously explained, “that the DOT
does not use specifically describe a ‘sit/stand option’ does not necessarily create an inherent
conflict when the ALJ’s determination of a plaintiff’s RFC provides for the option.” Melvin v.
Astrue, 2010 WL 908495 (N.D. Miss 2009), citing Charles v. Astrue, 291 Fed. Appx. 552 (5th
Cir. 2008); Sbiewski v. Astrue, 302 Fed. Appx. 488, 494-95 (7th Cir. 2008). Furthermore, as the
Commissioner correctly asserts, the Fifth Circuit has recognized that the DOT “cannot and does
not purport to include each and every specific skill or qualification,” and “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.” Carey v.
Apfel, 230 F.3d 131, 145 (5th Cir. 2000). Because no inherent conflict existed between the VE’s
testimony and the DOT, this claim is without merit.
After diligent review, the court concludes that the ALJ’s decision was supported by
substantial evidence and applied the proper legal standards and therefore must be affirmed. A
final judgment in accordance with this memorandum opinion will issue this day.
SO ORDERED, this the 9th day of June, 2015.
/s/ S. Allan Alexander
UNITED STATES MAGISTRATE JUDGE
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