Spells v. Colvin
Filing
15
MEMORANDUM OPINION. Signed by Magistrate Judge S. Allan Alexander on 5/9/16. (bnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
STANLEY A. SPELLS
PLAINTIFF
vs.
CIVIL ACTION NO. 3:15CV147-SAA
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY
DEFENDANT
MEMORANDUM OPINION
Stanley A. Spells has filed an application under 42 U.S.C. § 405(g) for judicial review of
the decision of the Commissioner of Social Security denying his application for supplemental
security income (SSI) payments under Section 1614(a)(3) of the Act. Plaintiff protectively filed
an application for benefits on September 4, 2012, alleging disability beginning on August 15,
2009.1 Docket 7, p. 133-38. His claim was denied initially on January 28, 2013, and upon
reconsideration on April 18, 2013. Id. at 54-63, 64-73. He filed a request for hearing (id. at 8990) and was represented by counsel at the hearing held on July 11, 2014. Id. 29-53. The
Administrative Law Judge (ALJ) issued an unfavorable decision on August 25, 2014, and on July
1, 2015, the Appeals Council denied plaintiff’s request for a review. Id. at 9-24, 2-4. Plaintiff
timely filed this 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.
1
Plaintiff amended his onset date at the hearing to September 4, 2012. Docket 7, p. 35.
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I. FACTS
Plaintiff was born on December 1, 1957. Docket 7, p. 33. He was 54 at the time of his
application and 56 at the time of the hearing. Id. He has a GED, and the ALJ found that his past
relevant work was as a material handler, carpenter and janitor. Id. at 35, 46. He contends that he
became disabled before his application for benefits as a result of “rotorcup” injury to shoulder,
depression, knee problems, high blood pressure and arthritis. Id. at 167. The ALJ determined
that plaintiff suffered from “severe” impairments including “osteoarthritis and right shoulder
disorder,” (Docket 7, p. 14), but that these impairments did not meet or equal a listed impairment
in 20 C.F.R. Part 404, Subpart P, App. 1 (416.920(d), 416.925 and 416.926 ). Id. at 17. Based
upon testimony by the vocational expert [VE] at the hearing and considering the record as a
whole, the ALJ determined that plaintiff retains the Residual Functional Capacity (RFC) to
perform medium work as defined in 20 CFR 416.967(c) except he
can never climb ladders, ropes, or scaffolds, occasionally balance,
crawl, push/pull with the right upper extremity and reach overhead
with the right upper extremity. He can frequently stoop, kneel and
crouch, and climb ramps and stairs. He should avoid even
moderate exposure to vibration and machinery that requires more
than occasional postural activity to operate.
Docket 7, p. 17. Upon further analysis under applicable rulings and regulations, the ALJ found
plaintiff to be less than fully credible in that the intensity, persistence and limiting effects he
claimed due to his symptoms were not credible. Id. at 19. After evaluating all of the evidence in
the record, including testimony of a VE and the testimony of plaintiff’s friend Margaret King, the
ALJ held that plaintiff could perform his past relevant work as a janitor, as well as the jobs of a
packager, kitchen helper and car detailer. Id. at 21-23. As a result, the ALJ concluded that
plaintiff is not disabled under the Social Security Act. Id. at 23.
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Plaintiff contends that the ALJ erred because she reached an RFC that was contrary to the
only medical opinion concerning plaintiff’s limitations, and she failed to find plaintiff disabled in
light of testimony by the vocational expert and the GRIDS. 20 C.F.R. Pt. 404, Subpt. P, App. 2.
The court finds that the ALJ improperly discounted the opinion of Dr. Jacinto DeBorja, which
resulted in a flawed RFC. Finding further that an award of benefits is proper, the court remands
the case for a determination of benefits.
II. STANDARD OF REVIEW
In determining disability, the Commissioner, through the ALJ, works through a five-step
sequential evaluation process.2 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.3 First,
plaintiff must prove he is not currently engaged in substantial gainful activity.4 Second, plaintiff
must prove his impairment is “severe” in that it “significantly limits [his] physical or mental
ability to do basic work activities . . . .”5 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
2
See 20 C.F.R. § 416.920 (2010).
3
Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999).
4
20 C.F.R. § 416.920(b) (2010).
5
20 C.F.R. § 416.920(c) (2010).
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impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1, §§ 1.00-114.09 (2010).6 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.7 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.8 If the Commissioner proves
other work exists which plaintiff can perform, plaintiff is given the chance to prove that he
cannot, in fact, perform that work.9
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). A court has limited power of review and may not
reweigh the evidence or substitute its judgment for that of the Commissioner,10 even if it finds
6
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.”
20 C.F.R. § 416.925 (2003).
7
20 C.F.R. § 416.920(e) (2010).
8
20 C.F.R § 416.920(g) (2010).
9
Muse, 925 F.2d at 789.
10
Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988).
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that the evidence leans against the Commissioner’s decision.11
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 [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
According to plaintiff, the ALJ erred when she found that the opinion of Dr. Jacinto
DeBorja was unsupported by objective evidence and ultimately concluded that plaintiff could
perform work at the medium exertional level. Docket 13, p. 10. She first declined to give Dr.
Shearin’s opinion great weight because it did not provide any specificity as to the limitations of
plaintiff’s ability to work [Docket 7, p. 21], then afforded only limited weight to Dr. DeBorja’s
opinion that plaintiff could perform light work with some additional limitations. Id. As a result,
11
Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); Harrell v. Bowen, 862 F.2d 471,
475 (5 Cir. 1988).
th
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according to plaintiff, the ALJ used her own lay opinion to conclude that plaintiff could perform
medium exertional work. The Commissioner responds that the ALJ properly discounted Dr.
DeBorja’s opinion because Dr. Shearin’s records indicate mostly normal findings. Docket 13, p.
9. Additionally, the Commissioner asserts that the ALJ did not substitute her own judgment, but
instead considered and discussed both opinions and ultimately rejected that of Dr. DeBorja.
Docket 13, p. 6-10.
This case turns on the question of whether plaintiff may perform medium exertional level
work or is limited to work at the light exertional level. Dr. Shearin conducted a thorough
examination of plaintiff, and his report contains the results of various objective tests he
conducted, including the Empty Can Test and Infraspinatus test. Docket 7, p.242-48. Dr.
Shearin concluded that plaintiff had “[p]ossible right rotator cuff dysfunction, with supportive
findings today.” Id. at 247. He noted that examination by an orthopedic surgeon was merited.
Id. The Disability Adjudicator then obtained an opinion from Dr. Jacinto DeBorja, a surgeon, as
to plaintiff’s functional abilities. Id. at 58-60. Dr. DeBorja’s evaluation of the records, including
those of Dr. Shearin, resulted in his opinion that plaintiff was limited to a reduced range of light
work with the following limitations: occasionally lift 20 pounds; frequently lift 10 pounds;
limited push and/or pull in the upper extremities and on the right side; push/pull limited to
occasionally for the right shoulder; never climb ladders, ropes, scaffolds; and plaintiff is to avoid
even moderate exposure to vibration. Id. The record contains no other quantitative opinion
regarding plaintiff’s limitations or abilities to perform work related functions.
There is no medical opinion in the record to support the limitations that the ALJ
established in his RFC determination, specifically that plaintiff could perform work at the
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medium exertional level. The Commissioner argues that the ALJ’s opinion that plaintiff could
perform medium work is supported by the record and that the ALJ properly considered the
“totality of the evidence” to reach her RFC determination. Docket 14, p. 12. In other words,
even though the ALJ’s opinion did not have a basis in any medical finding which supports her
conclusions regarding plaintiff’s physical capabilities, and even though the plaintiff raised this
important detail in his memorandum brief, the Commissioner continues to do the same thing in
this court that the ALJ did – take on the role of a physician and try to reach a conclusion as to
plaintiff’s capabilities from the raw medical data.
The ALJ determined that the only medical opinion concerning plaintiff’s vocational
abilities – that of the consultant, Dr. DeBorja – was not supported by the record evidence, and
she discounted that opinion as a result. The Commissioner asserts that because Dr. Shearin’s
records do not contain any physical limitations on plaintiff’s ability to work, and because his
report indicates “no limitations on [plaintiff’s] ability to sit, stand, walk, reach, and perform other
activities,” the RFC is supported by the record. Docket 14, p. 11. However, the fact remains that
the only medical opinion concerning plaintiff’s vocational abilities from any physician conflicts
with the ALJ’s findings. The ALJ reached her conclusion as to plaintiff’s vocationally relevant
functional limitations on her own after hearing plaintiff’s testimony and reviewing the raw
medical data.
The court rejects the Commissioner’s argument as untenable. Certainly, the
responsibility of determining the plaintiff’s residual functional capacity belongs to the ALJ,
Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995); in making this determination she must
consider all the evidence in the record, evaluate the medical opinions in light of other
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information contained in the record, and determine the plaintiff’s ability despite his physical and
mental limitations. Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995). The ALJ has
considerable discretion in reviewing facts and evidence but, as a layman, she is not qualified to
interpret raw medical data in functional terms. Perez v. Secretary of Health and Human
Services, 958 F.2d 445, 446 (1st Cir. 1991) (citations omitted); see Richardson v. Perales, 402
U.S. 389, 408 (1971) (upholding the use of testimony from vocational expert because the ALJ is
a layman). The ALJ is simply not at liberty to establish physical limitations or lack of those
limitations without medical proof to support that conclusion. Patterson v. Astrue, 2008 WL
5104746, *4 (N.D. Miss. 2008), citing Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). “The
ALJ’s findings of fact are conclusive when supported by substantial evidence, 42 U.S.C. 405(g),
but are not conclusive when derived by ignoring evidence, misapplying the law or judging
matters entrusted to experts.” Nyugen v. Chater, 172 F.3d at 35.
The court has examined the record and, despite the ALJ’s inclusion of these findings in
her RFC, cannot locate evidence that any treating or examining physician ever stated plaintiff
was capable of performing medium work. As indicated by plaintiff and the Fifth Circuit, “an
ALJ may not rely on [her] own unsupported opinion as to the limitations presented by the
applicant’s medical conditions.” Ripley v. Chater, 67 F.3d 552, 557-58 (5th Cir. 1995). This
appears to be exactly what the ALJ did in this case. In direct contradiction to the applicable case
law, the ALJ established physical limitations without any medical proof to support those
limitations, then, using those unsupported limitations, reached an RFC based upon her own
extrapolation of the medical records as to plaintiff’s ability to work. The evidence is clear that
plaintiff may only perform light work. Based upon his borderline age at the time of application,
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he is considered an individual of advanced age. Docket 7, p. 33. He has a GED and according to
VE testimony, he does not have transferrable work skills. Docket 7, p. 35, 48. Therefore,
plaintiff is disabled under both §§ 202.04 and 202.06, regardless of whether considering his
unskilled previous work as a janitor or his skilled and semi-skilled previous work as a carpenter
and material handler. Accordingly, the court holds that because the evidence is conclusive, an
award of benefits at this stage would be in the best interests of the plaintiff’s health and welfare
and will avoid further undue delay which would result upon remand for additional review. The
court directs that this case be remanded for the sole purpose of determining the amount of
benefits to be awarded to the plaintiff under the Act.
IV. CONCLUSION
For the foregoing reasons, the court finds that the decision of the ALJ was not supported
by substantial evidence, and plaintiff is entitled to benefits under the Social Security Act. This
case is remanded for the sole purpose of determining the amount of benefits to be awarded. A
final judgment in accordance with this memorandum opinion will issue this day.
SO ORDERED, this, the 9th day of May, 2016.
/s/ S. Allan Alexander
UNITED STATES MAGISTRATE JUDGE
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