Fennell v. Commissioner of Social Security

Filing 17

MEMORANDUM OPINION. Signed by Magistrate Judge David A. Sanders on 10/3/17. (def)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
PAMELA HILLEY FENNELL

PLAINTIFF

V.

CIVIL ACTION NO.3:16CV-261-DAS

COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

MEMORANDUM OPINON
This cause is before the court on the plaintiff=s complaint for judicial review of an
unfavorable final decision by the Commissioner of the Social Security Administration. The
parties have consented to entry of final judgment by the United States Magistrate Judge under
the provisions of 28 U.S.C. ' 636(c), with any appeal to the Court of Appeals for the Fifth
Circuit. The court, having reviewed the administrative record, the briefs of the parties, and the
applicable law and having heard oral argument, finds as follows, to-wit:
STANDARD OF REVIEW
This court=s review of the Commissioner=s decision is limited to an inquiry into whether
there is substantial evidence to support the findings of the Commissioner, Richardson v.
Perales, 402 U.S. 389, 401 (1971), and whether the correct legal standards were applied. 42
U.S.C. ' 405 (g.); Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994); Villa v. Sullivan, 895 F.2d
1019, 1021 (5th Cir. 1990). Substantial evidence has been defined as Amore than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.@ Perales, 402 U.S. at 401 (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229
(1938)). The Fifth Circuit has further held that substantial evidence Amust do more than create a
suspicion of the existence of the fact to be established, but >no substantial evidence= will be found

only where there is a >conspicuous absence of credible choices= or >no contrary medical
evidence.=@ Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (quoting Hames v. Heckler, 707
F.2d 162, 164 (5th Cir. 1983)). Conflicts in the evidence are for the Commissioner to decide, and
if substantial evidence is found to support the decision, the decision 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 may not reweigh the evidence, try the case de novo, or substitute its own judgment for that
of the Commissioner, Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988), even if it finds that
the evidence preponderates against the Commissioner=s decision. Bowling v. Shalala, 36 F.3d
431, 434 (5th Cir. 1994); Harrell, 862 F.2d at 475. The court must however, in spite of its
limited role, Ascrutinize the record in its entirety to determine the reasonableness of the decision
... and whether substantial evidence exists to support it.@ Randall v. Sullivan, 956 F.2d 105, 109
(5th Cir. 1992). If the Commissioner=s decision is supported by the evidence, then it is a
conclusive and must be upheld. Perales, 402 U.S. at 390.
BACKGROUND
Pamela Hilley Fennell, was fifty-nine years old at the time of her hearing in March 2015.
She alleged onset of disability in 2008 and her date last insured was December 2013. She had a
high school education and additional training as an x-ray technician and certified breath alcohol
technician. She had past work experience as a physician’s assistant and as a phlebotomist. At
Step Two, the ALJ found that she suffers from degenerative lumbar disease and has undergone a
lumbar laminectomy.
Dr. Barry Politi performed a consulting examination of Fennell on August 26, 2013.
Politi noted that Fennell complained of pain on rotation and palpation of the spine but sat easily
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for longer than 15-20 minutes. He noted that her gait was stiff but otherwise normal. Politi
observed that she had no difficulty walking out to her car, bending and getting into the car,
opening the door, and reaching for the seatbelt or driving wheel. His impression was lumbar
spine surgery, low back pain, history of intracardiac ablation for supraventricular arrhythmia,
right side shoulder surgery in the distant past, hypertension, chronic back pain, tobacco abuse,
chronic bronchitis and chronic sinusitis. Politi stated there was some evidence of the plaintiff
magnifying her symptoms. Based on his examination, Politi could not see why the claimant
could not perform some type of work. He asked Fennell if she could do more sedentary or desktype work, and reported that she said she could not. Politi did not provide a medical source
statement regarding the plaintiff’s function-by-function physical capacity.
The record also contains reports from two disability determination doctors. Dr. Hulett
reviewed the records and concluded that the plaintiff could return to her former employment but
did not address plaintiff’s specific physical capacities. Dr. James found that Fennell could
perform medium work with postural limitations. The ALJ found that the plaintiff could perform
what she called a full range of light work, though she proceeded to limit the scope with
occasional postural limitations, and a finding that Fennell could not climb ladders, ropes or
scaffolding. There was no testimony from a vocational expert. The ALJ determined at Step Four
that the plaintiff could return to her past work as a physician’s assistant and as a phlebotomist
and that she was, therefore, not disabled as of the date of the decision.
The plaintiff raised the following issues:
1. The ALJ’s RFC finding is not supported by substantial evidence;

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2. The ALJ violated Social Security Ruling 82-62 in finding that the plaintiff could
return to her past relevant work;
3. The ALJ erred in assessing the plaintiff’s credibility;
4. The ALJ erred in not discussing the plaintiff’s husband’s report; and
5. The ALJ failed to properly consider three MRI scan reports.
The court addresses each argument below.
1. SUBSTANTIAL EVIDENCE TO SUPPORT THE RFC
The plaintiff argues that the ALJ’s finding that she could perform a full range of light
work is not supported by substantial evidence. As noted above the only medical opinion setting
forth the plaintiff’s physical capacities, function-by-function, comes from one state disability
determination physician. This doctor opined that Fennell could perform medium work with
postural limitations. The other report, from Dr. Politi, the consultative examiner, discussed his
review of her medical history, his findings on physical examination and his opinion that the
plaintiff was magnifying her symptoms. He did not provide opinions on her functional
capacities or limitations. He did opine that he saw “no reason why this woman, if she wanted to,
would not be able to find some type of regular employment.” His report references only
sedentary work, specifically some type of “desk job.”
The opinions of a non-examining physician do not rise to the level of “substantial
evidence” to support an RFC determination, if contradicted by the opinion of a treating or
examining source. The disability determination doctors are highly trained professionals, with
extensive knowledge of the regulatory framework governing Social Security disability
determinations. They provide invaluable early screening, which can lead to the quicker awards
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of benefits for the terminally ill and those who are most clearly disabled. However, the fact that
their opinions are given without the benefit of an examination and typically on less than the
complete medical records, limits the value of their findings as a case proceeds to the hearing
level.
After complete medical records are compiled and examining and/or treating doctors have
weighed in on the claimant’s condition, these early doctor’s opinions may be fairly questioned as
to their accuracy. Depending on the strength of the later adduced medical proof, it is sometimes
legitimate to question whether these doctors would, if aware of the added information, adhere to
or repudiate their earlier opinions. Thus, the Fifth Circuit Court of Appeals has held that the
opinions of the disability determination doctors are not substantial evidence, as a matter of law,
to support an ALJ’s determination of a claimant’s residual functional capacity, in the face of
conflicting opinions from a treating or examining source. Villa v Sullivan, 895 F.2d 1019, 102324 (5th Cir. 1990).
The Commissioner argues the opinion of the disability determination doctor, James, does
not conflict with the findings of consulting examiner, Politi, and his opinion is, therefore,
substantial evidence to support the RFC finding. The court disagrees.
First, the court notes that the Commissioner routinely disregards any opinions of treating
physicians that their patient is “disabled” or “completely unable to work.” In its administrative
decisions and on appeal, the Social Security Administration will always point out that the
determination of whether a claimant is disabled is the Commissioner’s responsibility. Physicians
are not familiar with the legal standards nor are the vocational experts. So their opinions on
disability are outside the scope of expertise of the treating physicians, and if conclusory, these
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opinions do not aid the Commissioner in making the appropriate determination. The consulting
examiner’s conclusory statement in this case that Fennell is not disabled is likewise outside of
the scope of his expertise and unenlightening. If a conclusory opinion favorable to a claimant
does not support a finding of disability, such a conclusory opinion, unfavorable to a claimant,
should not be found sufficient to support a denial of benefits.
Secondly, Politi’s opinion on its face contradicts Dr. James’ opinion. While Politi’s
report states he thinks this woman can work a regular job, he only references sedentary and desk
type work. James’ opinions find that the plaintiff can perform medium work. While there may
be some question about the doctor’s definition of sedentary work, nothing in his report squares
with James’ assessment at the medium level of exertion, nor for that matter with the ALJ’s
finding that the plaintiff is capable of light work.1
While it is the prerogative and duty of the ALJ to assess a claimant’s residual functional
capacity, that determination must be informed by expert medical evidence. Villa, 895 F.2d at
1023-24. There is no expert medical evidence to support the ALJ’s determination. On this issue,
the matter is to be remanded for further consideration. The defendant may either contact Politi to
obtain a function-by-function report on the claimant’s ability and/or order a new consultative
examination.
2. PAST RELEVANT WORK AND SSR 82-62
The ALJ determined that Fennell could return to her past work as a phlebotomist and
medical assistant. The plaintiff challenges this part of the decision arguing the ALJ violated the

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The court notes that the Commissioner has attempted to defend its RFC based on Politi’s report, which is
consistent with a sedentary level of exertion. The plaintiff argues that if she is restricted to sedentary work the
Medical-Vocational guidelines would direct a finding of disabled.

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mandates of Social Security Ruling 82-62, 1982 WL 31386 (S.S.A. 1982). This ruling
recognizes that deciding if a claimant Aretains the functional capacity to perform past relevant
work ... has far-reaching implications and must be developed and explained fully in the disability
decision.@ Id. at * 3. Because this is Aimportant and, in some instances, ...[the] controlling issue,
every effort must be made to secure evidence that resolves the issue as clearly and explicitly as
circumstances permit.@ Id. These decisions must provide specifics about the past work=s
demands and how those match with the claimant=s remaining capacity for work in making a Step
Four decision. SSR 82-62 at * 4. As with all decisions, the ALJ must articulate the rationale
underlying the decisions made in evaluating a claim, to facilitate meaningful appellate review.
Hurst v. Secretary of Health & Human Services, 753 F.2d 517, 519 (6th Cir. 1985). With Step
Four determinations, an appellate court must be able to determine Ahow specific evidence leads
to [the] conclusion,@ (SSR 82-62 at *4), that the plaintiff has the capacity to perform past work.
The determination that a claimant may return to his or her past relevant work may be based on a
finding that the claimant can perform their past jobs, as they have actually performed it in the
past, or the determination may be made that they can return to the same occupation, as it is
generally performed in the national economy. Id. at *3.
Social Security Ruling 82-62 requires three sequential steps in determining a claimant=s
capacity for past relevant work experience. First, there must be a Afinding of fact of the
individual=s RFC.@ Second, there must then be a Afinding of fact as to the physical and mental
demands of the past job/occupation.@ Finally, there must be fact findings that Athe individual=s
RFC would permit a return to his or her past job or occupation.@ Id. at *4.

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The rule requires documentation of past work experience including Afactual information
about those work demands which have a bearing on the medically established limitations.
Detailed information about strength, endurance, manipulative ability, mental demands and other
job requirements must be obtained as appropriate.@ Id. at *3. (Emphasis added).
The ALJ did assess Fennell’s residual functional capacity, though the holding is
somewhat confusing. The ALJ first proclaims that the plaintiff is capable of performing a full
range of light work. She then added limitations, precluding the plaintiff from climbing ladders,
ropes or scaffolds. She also found the plaintiff could only occasionally climb stairs or ramps,
and could only occasionally balance, stoop, kneel, crouch or crawl.
The plaintiff argues that the ALJ failed to perform the second or third steps prescribed in
the ruling. She argues the ALJ failed to develop sufficient factual information about the
demands of Fennell’s past work experience and, failed to make the required detailed findings to
support the decision. The plaintiff argues that the decision made violates SSR 82-62 both as to
how Fennell performed her past jobs and as to the manner these past occupations are generally
performed. The court agrees.
The ALJ’s findings at Step Four are perfunctory. She found:
In the work history report, the claimant describes these occupations and
earnings queries support substantial gainful activity level wages during the years
she purported to perform them (Exhibit 4D, 5D, 6D, 5E). In comparing the
claimant’s residual functional capacity with the physical and mental demands of
this work, the undersigned finds that the claimant was able to perform it as
actually and generally performed.
The ALJ then references the opinion of a vocational examiner who opined that Fennell
could return to her past job as a medical assistant, a job the ALJ correctly identified as being
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performed at the light level of exertion. The ALJ then stated: “The occupation of phlebotomist
is described in the Dictionary of Occupational Titles as sedentary.” This statement is wrong.
The D.O.T. describes the job as light.

The ALJ concluded the Step Four determination by

stating : “The undersigned has considered the claimant related she has difficulty with bending
and the Dictionary of Occupational Titles shows that stooping is required only occasionally in
the occupation of phlebotomist and is not present in the occupation of medical assistant.”
The first sentence in the Step Four determination states that the ALJ had identified past
relevant work experience. The second sentence states the ALJ’s conclusion: The plaintiff can
return to her past jobs as she performed them and to her past occupations as generally performed.
The first part of the determination--that she can perform her past jobs as actually
performed--is already fatally flawed. The work history provided by the plaintiff at Exhibit 5E
shows that her past work as a phlebotomist required her to assist in lifting patients on a daily
basis and that she was required to lift up to fifty pounds, a lifting requirement, consistent with
medium exertion, and inconsistent with the light RFC. The ALJ never mentions this conflict, nor
is there any reference to contradictory statements from an employer or a vocational expert to
contradict the plaintiff’s description. Without an evidentiary basis for finding the plaintiff
actually performed her past work at the light level of exertion, there is no evidence to support the
ALJ’s “as actually performed” decision.
The ALJ can alternatively find that the plaintiff can return to past relevant work, if she
can perform the job, “as generally performed” in the national economy. The ALJ identifies the
statement of the vocational examiner without discussion of her findings beyond the fact that the
examiner opined Fennell could go back to her past work as a medical assistant. The ALJ made
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no specific factual findings about this job nor did she attempt to match the job requirements to
the plaintiff’s RFC.
In identifying the phlebotomist job as sedentary the ALJ committed a fundamental factual
error. The job is performed at the light level of exertion.2 The court disagrees with the
government’s position that the error is inconsequential or harmless. In the last two sentences the
ALJ, believing that she is assessing Fennell’s capacity to return to a sedentary job addresses one
of the postural limitations included in her RFC, the capacity to stoop.
It is true that ALJ’s may refer to and rely upon the Dictionary of Occupational Titles for
basic information about job descriptions, Villa, 895 F.2d at 1022. Such information might be
adequate if the plaintiff’s light work RFC had not contained added restrictions. However, the
dictionary provides only limited information and does not substitute for expert vocational
testimony. Fields v. Bowen, 805F.2d 1168, 1171 (5th Cir. 1986) (Because of the general nature of
DOT job descriptions, the Dictionary of Occupational Titles is not an adequate substitute for

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The DOT description for this job is as follows:

079.364-022 PHLEBOTOMIST (medical ser.)
Draws blood from patients or donors in hospital, blood bank, or similar facility for
analysis or other medical purposes: Assembles equipment, such as tourniquet, needles,
disposable containers for needles, blood collection devices, gauze, cotton, and alcohol on
work tray, according to requirements for specified tests or procedures. Verifies or records
identity of patient or donor and converses with patient or donor to allay fear of procedure.
Applies tourniquet to arm, locates accessible vein, swabs puncture area with antiseptic,
and inserts needle into vein to draw blood into collection tube or bag. Withdraws needle,
applies treatment to puncture site, and labels and stores blood container for subsequent
processing. May prick finger to draw blood. May conduct interviews, take vital signs, and
draw and test blood samples to screen donors at blood bank.
GOE: 02.04.02 STRENGTH: L GED: R3 M2 L3 SVP: 3 DLU: 88
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vocational expert testimony). While recognizing that the ALJ is not invariably required to use
expert vocational testimony in every case in making the Step Four determinations, Carey v Apfel,
230F.3d 131 (5th Cir. 2000), this case demonstrates the hazards of an ALJ trying to proceed
without such an expert.
Here the ALJ has recognized the vocational impact of at least one postural limitation, and
has misidentified the exertional level and further, failed to identify an authoritative source on the
impact of the postural limits within the RFC on the ability to perform the job. The DOT job
description does not provide the necessary information. The ALJ asserted that only occasional
stooping is required in work as a phlebotomist according to the DOT. Neither the description of
the jobs of medical assistants or for phlebotomists in the DOT contain any reference to stooping
or other postural limitations. The O*Net OnLine, a data base on occupations maintained by the
U.S. Department of Labor, says that both phlebotomists and medical assistants are required to
perform “physical activities that require considerable use of your arms and legs and moving your
whole body, such as climbing, lifting, balancing, walking, stooping, and handling of materials.3
This description provides no information that the court was able to locate that addressed the
frequency of stooping required in these jobs. If the court cannot ascertain the information being
relied on in the decision, it cannot follow the reasoning, nor effectively review the decision.
The ALJ has done little more than identify the exertional level for one job, and
misidentify the exertional level for another job. The ALJ largely disregarded the postural limits
in deciding the plaintiff’s ability to return to her past employments, and when she did address
one postural limitation, she did not identify a basis for her holding. In doing so, the ALJ

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.” https://www.onetonline.org/link/summary/31-9097.00 and 31-9092.00.

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violated the provisions of SSR 82-62. On remand, any determination that the plaintiff is able to
return to past relevant work must be made in accordance with SSR 82-62
3. DETERMINATION OF PLAINTIFF’S CREDIBILITY
The ALJ found that the plaintiff statements regarding the intensity, persistence and
limiting effects of her symptoms were not entirely credible. The plaintiff asserts this
determination is not supported by substantial evidence and demonstrates that the ALJ cherry
picked the evidence to support the decision denying benefits. When an ALJ must assess the
claimant’s credibility in determining the limiting effects of pain and other subjective symptoms,
the determination is critical to the entire decision. An ALJ must, therefore, provide the specific
reasons if finding that a claimant’s testimony or other statements are less than credible.
This court in reviewing a credibility determination must, however, treat the ALJ’s finding
with great deference because the ALJ, having heard the testimony and observed the claimant’s
demeanor, is in the best position to evaluate the claimant’s credibility. James v. Bowen, 793 F.
2d 702, 706 (5th Cir. 1986). Accordingly, the court will not upset the ALJ’s credibility findings
if there is substantial evidence to support those findings. See Carrier v. Sullivan, 944 F.2d 243,
246 (5th Cir. 1991); Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000). While the plaintiff has
highlighted elements of the plaintiff’s reported activities of daily living, which if accepted,
would support a finding that she suffers from severe pain and substantial physical limitations,
there is other evidence, including her self-reported ADLs which is not consistent with her claims
and tends to undermine her credibility. Furthermore, Dr. Politi’s opinion that the plaintiff was
magnifying her symptoms supports the ALJ’s findings that her reports of impairment are not
consistent with the medical and other evidence of record. The ALJ’s credibility decision is
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supported by substantial evidence and is, therefore, affirmed.
4. FAILURE TO EVALUATE THE HUSBAND’S STATEMENT
The plaintiff’s husband provided a functional report on his wife in which he confirmed
plaintiff’s reports of limitations in her daily activities. The plaintiff argues that the failure to
address this statement is an indication of a failure to consider the report and a violation of SSR
06-03p. The referenced social security ruling provides that the ALJ should generally “explain
the weight given” to other non-medical sources such as the husband’s report, to provide
subsequent reviewers with insight into the ALJ’s reasoning. But this now--rescinded ruling
acknowledges that there is a “distinction between what an adjudicator must consider and what
the adjudicator must explain.” The fact that the ALJ did not mention this statement does not
mean that the ALJ did not consider it. In light of the ALJ’s well-supported finding regarding the
plaintiff’s credibility, the court is not convinced that an error, if any, for failing to discuss the
husband’s statement was prejudicial to the plaintiff.
5. FAILURE TO CONSIDER/DISCUSS MRIs/EMGs
The plaintiff also argued that the ALJ erred in commenting on only one of three MRI’s
and misstating the findings of an EMG. The ALJ’s decision states that a “February 2014
electromyography revealed no evidence of denervation in the lower extremities.” This statement
is incorrect. The EMG report found “both lower extremities show evidence of chronic
denervation in the S1 nerve root muscles and right Vastus Lateralis muscle.” The ALJ also
mentioned a February 2014 MRI, that showed mild multilevel degenerative changes with no
evidence of cord compression. The decision makes no mention of the other findings in the two
additional MRIs from the same date. Without finding that the factual misstatement on the EMG
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or failure to discuss all three MRIs is necessarily error or prejudicial error, given that the case
must be remanded, the ALJ shall address the findings on the EMG and all three of the February
2014 MRIs.
The court finds that the Commisioner’s decision is reversed and remanded for further
proceedings consistent with the ruling of the court. A judgment consistent with this opinion will
be entered.
SO ORDERED AND ADJUDGED this the ____ of October, 2017.

/s/ David A. Sanders
UNITED STATES MAGISTRATE JUDGE

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