Liddell v. Commissioner of Social Security

Filing 17

MEMORANDUM OPINION. Signed by Magistrate Judge Roy Percy on 7/6/17. (bnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
CORDELL YOUNG LIDDELL

PLAINTIFF

vs.

CIVIL ACTION NO. 4:16CV196-RP

COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

MEMORANDUM OPINION
Plaintiff Cordell Young Liddell, under 42 U.S.C. § 405(g), seeks judicial review of the
decision of the Commissioner of Social Security denying his application for disability insurance
benefits (DIB) and a period of disability (POD) under Sections 216(I) and 223 of the Social
Security Act. Plaintiff protectively filed his application for benefits on July 15, 2014. His
application alleged disability beginning on December 5, 2012. His claim was denied initially on
February 13, 2015, and upon reconsideration on March 3, 2015. He filed a request for hearing
and was represented by counsel at the hearing held on April 27, 2016. The Administrative Law
Judge (ALJ) issued an unfavorable decision on June 14, 2016, and the Appeals Council denied
plaintiff’s request for a review on September 21, 2016. Plaintiff timely filed the instant 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. Having considered the record, the
briefs and the oral arguments of counsel, the court finds this case should be affirmed.

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I. FACTS
Plaintiff was born on March 17, 1962 and was 54 years old at the time of the hearing. He
testified that he attended high school and previously worked as a correctional officer. Docket 8
at 181-82. Plaintiff contends that he became disabled before his application for benefits due to
“diabetes, PTSD, poor vision, depression, brain damage, HBP (high blood pressure), memory
loss, heart attack, stroke and NIDPM (non-insulin-dependent diabetes mellitus). Docket 8 at
304.
Completing the five-step evaluation process, the ALJ determined that plaintiff suffered
from “severe” impairments of diabetes and depressive disorder, but found these impairments did
not meet or 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). Based upon the plaintiff’s testimony at the hearing and
considering the medical records he reviewed, the ALJ concluded that plaintiff retains the
Residual Functional Capacity (RFC) to
perform light work as defined in 20 CFR 404.1567(b) except the
claimant cannot climb ladders, ropes, or scaffolds. The claimant
can occasionally climb ramps and stairs. The claimant cannot
work at heights or around hazards. The claimant is limited to
simple, repetitive tasks, meaning he can understand, remember,
and carry out simple instructions, and should have only occasional
interaction with the public, supervisors, and coworkers.
Docket 8 at 22. 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 entirely consistent with the medical evidence . . . .” Id.
Considering the testimony of a vocational expert, the ALJ determined that plaintiff could
perform the jobs of a merchandise marker, routing clerk, and mail clerk in the national economy

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and was therefore not disabled under the Social Security Act. Id. at 26.
Plaintiff contends that the ALJ erred because he failed to properly consider all of the
evidence in the record. Specifically, plaintiff asserts that the ALJ failed to consider his PTSD
under Listing 12.15, failed to consider the MRI of plaintiff’s brain and failed to properly
consider his back impairment. Following a review of the briefs, the transcript and oral argument,
the undersigned concludes that plaintiff’s case should be affirmed.
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 his burden at
each of the first four levels, then the burden shifts to the Commissioner at step five.2 First,
plaintiff must prove he is not currently engaged in substantial gainful activity.3 Second, plaintiff
must prove his impairment is “severe” in that it “significantly limits [his] physical or mental
ability to do basic work activities . . . .”4 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
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. §§ 404.1520(2010).

2

Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999).

3

20 C.F.R. §§ 404.1520(b) (2010).

4

20 C.F.R. §§ 404.1520(c) (2010).

5

20 C.F.R. §§ 404.1520(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).
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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.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 he 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 he
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). 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). 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 that 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.”

6

20 C.F.R. §§ 404.1520(e)(2010).

7

20 C.F.R §§ 404.1520(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 (5 Cir. 1988).
th

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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
Plaintiff contends the ALJ erred in failing to consider all of the evidence in the record,
specifically his PTSD diagnosis, his brain MRI and his back impairment. Docket 12 at 8. In
response, the Commissioner asserts that even if the ALJ’s consideration of plaintiff’s PTSD,
MRI and back impairment was in error, plaintiff has not shown any prejudice as a result. Docket
15 at 5.
The Fifth Circuit has routinely held that “[a]n administrative law judge has a duty to fully
and fairly develop the facts relative to a claim for disability benefits. The Court will not reverse
the decision of an ALJ for failure to fully and fairly develop the record unless the claimant
shows that he or she was prejudiced by the ALJ's failure.” Carey v. Apfel, 230 F.3d 131, 142 (5th
Cir. 2000); see also Brock v. Chater, 84 F.3d 726 (5th Cir. 1996); Kane v. Heckler, 731 F.2d 1216
(5th Cir. 1984). In order to establish prejudice, plaintiff must “demonstrate that he or she ‘could
and would have adduced evidence that might have altered the result.’” Id.
As to plaintiff’s PTSD, plaintiff notes that the ALJ failed to consider whether his PTSD

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was a severe impairment and further failed to consider whether it met a listing. The
Commissioner responds that the ALJ did in fact consider the PTSD, but it was in conjunction
with plaintiff’s depression. The ALJ mentioned in step 2 that Dr. Michael Whelan “noted that
the claimant had borderline intellectual functioning, posttraumatic stress disorder and chronic
depression, and depressive disorder . . . .” The VA psychologist, Dr. Lasun Young, found that it
was impossible to differentiate between the symptoms attributable to PTSD and depression.
Docket 8 at 606.

In evaluating plaintiff’s RFC, the ALJ found that plaintiff’s

VAMC records indicate posttraumatic stress disorder on several
occasions, but actual treatment notes reflect diagnosis of and
treatment for depression, not otherwise specified (Exhibits B2F
and B7F). Dr. Whelan noted posttraumatic stress disorder based
on the claimant’s subjective history and depressive disorder based
on the claimant’s presentation (Exhibit B3F). Accordingly, the
undersigned finds the claimant’s symptoms and the medical
evidence best supports depressive disorder.
Docket 8 at 24. Dr. Young further found that plaintiff’s depression and PTSD “are of minimal
severity, but have been ongoing since his deployment to Iraq” and that plaintiff’s “occupational
and social impairment [is] due to mild or transient symptoms which decrease work efficiency
and ability to perform occupational tasks only during periods of significant stress, or; symptoms
controlled by medication.” Id. at 608, 612. As such, the ALJ determined plaintiff had the RFC
to interact only occasionally with the public, supervisors and coworkers and perform only
simple, repetitive tasks. Docket 8 at 22. Based on a review of the transcript and oral argument,
the undersigned finds that plaintiff has failed to provide any evidence to demonstrate that he
would have meet the listing 12.06 for PTSD or that his impairment is more restrictive than the
RFC established by the ALJ. As such, plaintiff’s claim that the ALJ erred in failing to consider
his PTSD as a separate impairment fails.
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The plaintiff asserts, and the Commissioner agrees, that the ALJ improperly stated that
the record evidence failed to show that plaintiff experienced a CVA/stroke. Docket 15 at 7.
Both the MRI conducted in March 2014 and the discharge records confirm that plaintiff suffered
an “acute CVA.” Docket 8 at 437. However, plaintiff has not alleged – and the medical
evidence does not suggest – that he suffered any impairment which lasted for twelve (12)
consecutive months as a result of the stroke. Because Social Security Regulations require a
plaintiff to demonstrate an impairment that prevents him from performing his past work or any
other substantial gainful activity for 12 consecutive months, plaintiff has failed to demonstrate
any prejudice in the ALJ’s improper statement concerning his stroke. Therefore, plaintiff’s
assignment of error as to the consideration of the MRI and stroke is improper.
Last, the plaintiff alleges that the ALJ improperly concluded that there is “no acceptable
clinical or laboratory diagnostic findings provided by an acceptable medical source which show
the existence of a medically determinable impairment which could reasonably be expected to
cause low back pain.” Docket at 20. The plaintiff asks the court to consider an x-ray performed
on his lumbar spine that showed “mild osteophyte formation along the left side of L5-S1" and
“mild degenerative changes of L5-S1.” Docket 8 at 398. However, as the Commissioner notes,
there is no medical evidence relating the osteophyte formation or the mild degenerative changes
to any back pain. Only one treatment record in plaintiff’s extensive medical transcript references
back pain and it appears to be in relationship to possible pancreatitis or chronic gastritis. Docket
8 at 508-09. The Fifth Circuit has held that, “[a]n impairment can be considered as not severe
only if it is a slight abnormality having such minimal effect on individual that it would not be
expected to interfere with the individual’s ability to work, irrespective of age, education or work

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experience.” Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985). Courts have held that the
severity standard is a cautious one and great care should be exercised in applying the standard to
deny benefits, but instead that the sequential evaluation should be continued if there is any
question whether the impairment has satisfied the standard. An ALJ’s failure to find a severe
impairment where one exists may not constitute reversible error where the ALJ determines that a
claimant has at least one other severe impairment and properly continues with the remaining
steps of the disability evaluation. Groberg v. Astrue, 415 Fed. Appx. 65, 67 (10th Cir. 2011).
While the ALJ in the instant case did conclude that plaintiff’s back pain did not result in a severe
impairment, the ALJ did continue with the remaining steps of the disability evaluation. Further,
the plaintiff has provided no evidence that the ALJ’s finding of non-severity as to his back pain
resulted in any prejudice to plaintiff. There is no indication that evidence exists which might
have altered the result if the ALJ had found his back impairment severe. Therefore, plaintiff’s
assignment of error regarding his back impairment is without merit.
IV. CONCLUSION
Reading the record as a whole, the court concludes that the ALJ’s opinion is supported by
substantial evidence and should be affirmed. It is clear that the ALJ reviewed the entire record
and developed it further at the hearing, properly identified and analyzed the relevant listed
impairments, fully discussed the evidence contained in the record and concluded that the balance
tipped toward functional ability in determining whether the plaintiff’s impairment met or equaled
a listed impairment. The plaintiff did not provide credible evidence that his alleged impairments
affect his ability to work to the point of disability, and the ALJ more than adequately explained
his reasons for concluding that plaintiff could perform light work. As a consequence, the

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undersigned holds that the ALJ’s decision was supported by substantial evidence and must be
affirmed. A final judgment in accordance with this memorandum opinion will issue this day.
SO ORDERED, this, the 6th day of July, 2017.
/s/ Roy Percy
UNITED STATES MAGISTRATE JUDGE

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