Taylor v. Commissioner of Social Security
MEMORANDUM OPINION. Signed by Magistrate Judge S. Allan Alexander on 07/26/16. (sd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
BARBARA ONEASE TAYLOR
CIVIL ACTION NO: 3:15-CV-221-SAA
COMMISSIONER OF SOCIAL SECURITY
Plaintiff Barbara Onease Taylor has applied for judicial review under 42 U.S.C. § 405(g)
of the Commissioner of Social Security’s decision denying her applications for disability
insurance benefits (DIB) under Title II of the Social Security Act and for Supplemental Security
Income (SSI) under Title XVI. Docket 11, pp. 286-87, 288-95. Plaintiff protectively filed
applications for benefits on March 12, 2013, alleging disability beginning on May 4, 2012.
Docket 11, pp. 286, 288. The agency administratively denied the plaintiff’s claim initially and
on reconsideration. Docket 11, pp. 181, 186, 193, 197. Plaintiff then requested an
administrative hearing, which administrative law judge (ALJ) Larry J. Stroud held on September
23, 2014. Docket 11, pp. 83-102. The ALJ issued an unfavorable decision on November 14,
2014. Docket 11, pp. 6-21. The Appeals Council denied her request for review on November 9,
2015. Docket 11, pp. 1-3. Plaintiff timely filed this appeal from the November 14, 2014
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.
Plaintiff was born May 5, 1966, and was 48 years old at the time of the September 23,
2014 ALJ hearing. Docket 11, pp. 286, 86. She has a 10th grade education and past relevant
work as a sampler – light exertional level – unskilled. Docket 11, pp. 86, 99. Plaintiff contends
that she became disabled before her application for disability as a result of back pain, high blood
pressure, diabetes with neuropathy and kidney problems. Docket 11, p. 149. After the
September 23, 2014 hearing, the ALJ determined that plaintiff suffered from “severe”
impairments of “degenerative disc disease of the lumbar spine, degenerative disc disease of the
cervical spine, and obesity” [Docket 11, p. 11], but that her impairments did not meet or equal a
listed impairment in 20 C.F.R. § 404, Subpart P, App. 1 (20 C.F.R. 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926). Docket 11, p. 13. The ALJ determined that
plaintiff retained “the Residual Functional Capacity [RFC] to: perform light work as defined in
20 C.F.R. 404.1567(b) and 416.967(b) except she can only occasionally climb, stoop, crouch,
crawl and kneel.” Docket 11, p. 13. At steps four and five the ALJ rejected plaintiff’s claims of
disability, concluding that she is capable of performing past relevant work as a sampler [Docket
11, p. 15], and that there are other jobs which exist in significant numbers in the national
economy which she can perform. Docket 11, p. 16. Consequently, he found plaintiff was not
Plaintiff argues the ALJ erred when deciding that she was not disabled under the Social
Security Act by (i) finding that the plaintiff’s diabetes was not a severe impairment; and (ii)
substituting his judgment for that of objective medical evidence.
II. EVALUATION PROCESS
In determining disability, the Commissioner, through the ALJ, works through a five-step
sequential evaluation process.1 The burden to prove disability rests upon plaintiff through the
first four steps of the process, and if plaintiff is successful in sustaining her burden at each of the
first four levels, the burden then shifts to the Commissioner at step five.2 First, the plaintiff must
prove she is not currently engaged in substantial gainful activity.3 Second, the plaintiff must
prove her impairment(s) are “severe” in that they “significantly limit [her] physical or mental
ability to do basic work activities. . .”4 At step three the ALJ must conclude that the 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 the
plaintiff does not meet this burden, at step four she must prove 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 that, considering plaintiff’s residual functional capacity, age, education
and past work experience, she is capable of performing other work.7 If the Commissioner proves
other work exists which plaintiff can perform, plaintiff is then given the chance to prove that she
20 C.F.R. § 404.1520; 416.920 (2010)
See Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999).
20 C.F.R. § 404.1520(b); 416.920(b) (2010).
20 C.F.R. § 404.1520(c); 416.920(c).
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. §
20 C.F.R. § 416.920(e) (2010).
20 C.F.R. § 416.920(g) (2010).
cannot, in fact, perform that work.8
III. 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,9 even if it finds 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, 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.”
See Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991).
Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988).
See Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); see also Harrell v. Bowen, 862 F.2d
471, 475 (5th Cir. 1998).
Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994), citing Richardson, 402 U.S. at 390.
Did the ALJ Err in Finding That the Plaintiff’s Diabetes Was a Non-Severe
Plaintiff argues that the ALJ violated the provisions of Stone v. Heckler, 752 F.2d 1099
(5th Cir. 1985) by finding plaintiff’s diabetes to be a non-severe impairment. Docket 15, p. 5.
The Commissioner responds that the ALJ thoroughly analyzed and articulated his findings at
step two, including a specific reference to Stone, and correctly weighed the medical evidence
regarding diabetes. Docket 16, p. 5. Even if the court determined plaintiff’s diabetes to be
“severe,” says the Commissioner, plaintiff’s case should not be remanded on this basis absent a
showing that the error was not harmless, i.e., that the physical symptoms of diabetes resulted in
any work-related functional limitations. Id, p. 7.
Step two in the sequential analysis requires an ALJ to determine whether a claimant has a
medically determinable impairment, or a combination of impairments, that can be described as
“severe.” 20 C.F.R. §§ 404.1520(c), 416.920(c). The Fifth Circuit uses a particular standard to
determine whether a claimant’s impairment is severe:
An impairment or combination of impairments is “severe” within the meaning of
the regulations if it significantly limits an individual’s ability to perform basic
work activities. An impairment is not severe only if it is slight abnormality
having such minimal effect on the individual that it would not be expected to
interfere with the individual’s ability to work, irrespective of age, education or
Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985); see also Loza v. Apfel, 219 F.3d 378, 39091 (5th Cir. 2000) (reaffirming this standard following federal regulatory revisions).
Having reviewed the record, the court concludes that the ALJ properly evaluated the
severity of plaintiff’s diabetes. The ALJ specifically cited Stone and the proper severity
standard. Docket 11, p. 13. He observed that Dr. Justin Brewer, who performed a consultative
examination on April 27, 2013, opined that plaintiff’s diabetes had not left her with any real
functional disability. Docket 11, pp. 13, 412-416. The ALJ also noted that even though records
from the Sumner Clinic showed some occasional extremity tingling, the majority of the clinic
records reference plaintiff’s diabetes as “uncomplicated.”11 Accordingly, substantial evidence
supports the ALJ’s conclusion that plaintiff’s diabetes is a slight abnormality that has such
minimal effect that it would not be expected to interfere with her ability to work, irrespective of
age, education or work experience.
Did the ALJ Err By Substituting His Judgment For That Of Objective Medical
In her second argument, plaintiff asserts the ALJ failed to consider all the record
evidence and “cherry picked” evidence by making no reference to a June 16, 2010 MRI that
showed a C4-5 central disk bulge causing mild mass effect on the anterior aspect of the cord,
both neural foramen bilaterally, and osteoarthritis and degenerative disk disease, as well as
hemangioma at the C5 level. Docket 15, pp. 6-7. The Commissioner responds that (1) because
the June 16, 2010 MRI relates to a time period addressed by plaintiff’s prior disability
application which was denied and not appealed, the ALJ properly excluded the MRI from
consideration; and (2) there was ample medical evidence to support the RFC given by the ALJ in
the current case.
As an initial matter, the court disagrees with the Commissioner’s argument that res
Docket 11, pp. 13, 381, 384, 393, 420, 423, 427, 434, 439, 457, 463, 470, 475, 486, 494, 497,
506, 521, 529, 535, 542, 547, 555, 558, 569, 578.
judicata applies to the June 16, 2010 MRI which was considered by an ALJ in a prior application
for benefits. First, plaintiff’s prior application for benefits considered a different time period,
and the adjudicated period for the current application did not overlap with her previous
application. See Rucker v. Chater, 92 F.3d 492, 496 (7th Cir. 1996) (rejecting the argument that
the “first ALJ’s findings established” claimant’s “maximum [RFC] – at that time and forever
more” because the first “was a binding determination. . . for that time period. It has no effect,
however, on an application . . . for a subsequent time period.”). Furthermore, according to
Social Security’s own rulings:
[I]f the subsequent claim involves deciding whether the claimant is disabled during a
period that was not adjudicated in the final determination or decision on the prior claim,
SSA considers the issue of disability with respect to the unadjudicated period to be a
new issue that prevents the application of administrative res judicata. Thus, when
adjudicating a subsequent disability claim involving an unadjudicated period, SSA
considers the facts and issues de novo in determining disability with respect to the
See AR 98–4(6). Thus, under the case law and SSA rulings, the court finds that the ALJ was not
precluded from reviewing and incorporating the June 16, 2010 MRI. The true issue here is
whether the ALJ’s not addressing and incorporating the MRI into his November 14, 2014
decision amounts to the application of an incorrect legal standard.
Conflicts in the evidence are for the Commissioner to decide; 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 finds that the ALJ’s RFC was
more than substantially justified. Throughout his decision, the ALJ acknowledged and
thoroughly discussed plaintiff’s well-documented history of back problems, including:
May 6, 2010 - x-ray of the cervical spine which showed mild cervical
spondylosis, most prominent at C3-C4, with mild encroachment of the neural
foramina. Docket 11, p. 407.
May 6, 2010 - x-ray of the thoracic spine which showed mild degenerative
arthritis and osteoporosis. Docket 11, p. 408.
August 2, 2010 - treatment at North Central Mississippi Neurological Surgery
Clinic – diagnosis of lumbar and cervical spondylosis with prescription for
Tramadol and Flexeril - recommendation of outpatient physical therapy. Docket
11, p. 445.
May 16, 2011 – treatment at Greenwood Leflore Hospital for moderate lumbar
spasm, antalgic gait, paraspinal lumbar tenderness, and pain with lumbar range of
motion - diagnosis of lumbar and cervical spondylosis - prescription for Lortab.
Docket 11, 447-48.
2012 – Eight office visits throughout the year at Sumner Clinic for back and neck
pain - prescriptions given for Flexeril, Tramadol and Lortab - recommendations
for massages and warm compresses. Docket 11, pp. 374-410.
January 25, 2013 – treatment at Sumner Clinic for muscle spasms - prescription
for Flexeril and Tramadol and a recommendation for massage and warm
compresses. Docket 11, p. 381.
April 27, 2013 – consultative examination by Dr. Justin Brewer who found that
plaintiff was in no apparent distress, was able to get on and off the exam table and
up and out of the chair, had the ability to dress and undress without difficulty or
assistance, ambulated without much difficulty, had a gait within normal limits,
had full and unrestricted range of motion in all joints, was minimally tender to
palpation, had a negative straight leg raising with sitting and supine, was able to
lay [sic] straight back on the table without difficulty, could walk on her heels and
toes, and had five out of five motor strength in all the proximal muscle groups.
Docket 11, pp. 412-416.
September 23, 2013 - treatment at Sumner Clinic for tenderness and tightness in
the right trapezius - prescription for Flexeril and Tramadol - recommendation of
massage and warm compresses. Docket 11, pp. 468-471.
January 14, 2014 – treatment at Sumner Clinic for back pain, but no observed
symptoms consistent with plaintiff’s complaints. Docket 11, pp. 461-464.
June 23, 2014 – treatment at Sumner Clinic for back pain – there were no
musculoskeletal or neurological exam findings, but the nurse practitioner
diagnosed plaintiff with lumbrosacral spondylosis without myelopathy and
ordered plaintiff to take Tylenol as needed. Docket 11, pp. 455-458.
Thus, this is not a case where the ALJ ignored or failed to acknowledge a plaintiff’s
claim of a physical impairment. The responsibility to determine the plaintiff’s residual
functional capacity belongs to the ALJ, Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995), and in
making this determination he 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 her physical and mental limitations. Martinez v. Chater, 64 F.3d 172, 176 (5th Cir.
1995). However, the ALJ may not establish physical limitations or lack of them 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 court finds that the ALJ provided ample support for his finding that the plaintiff’s
lumbar and cervical degenerative disc disease are “severe,” and that he fashioned his RFC to
incorporate those limitations. Furthermore, that the ALJ did not specifically cite to each and
every piece of medical evidence considered does not establish an actual failure to consider the
evidence. Castillo v. Barnhart, 151 Fed.Appx. 334 (5th Cir. 2005), citing Falco v. Shalala, 27
F.3d 160, 163 (5th Cir. 1994) (rejecting as unnecessary rule requiring ALJ to specifically
articulate evidence that supported decision and discuss evidence that was rejected). For these
reasons, plaintiff’s second argument 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. The Commissioner’s decision is
affirmed, and the case is closed. A final judgment in accordance with this memorandum opinion
will issue this day.
SO ORDERED, this the 26th day of July, 2016.
s/ S. Allan Alexander
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?