Howell v. Commissioner of Social Security

Filing 20

MEMORANDUM OPINION. Signed by Magistrate Judge Roy Percy on 6/2/17. (bnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION

JAMES D. HOWELL

PLAINTIFF

vs.

CIVIL ACTION NO. 4:16cv202-RP

NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

MEMORANDUM OPINION
Plaintiff James D. Howell has filed suit under 42 U.S.C. § 405(g) seeking judicial review
of the decision of the Commissioner of Social Security denying his applications for a period of
disability (POD) and disability insurance benefits (DIB) under Sections 216(I) and 223 of the
Social Security Act. Plaintiff filed an application for benefits on October 8, 2013 alleging
disability beginning on February 5, 2013. His claim was denied initially on December 18, 2013
and upon reconsideration on January 14, 2014. He filed a request for hearing and was
represented by counsel at the hearing held on June 4, 2015. The Administrative Law Judge
(ALJ) issued an unfavorable decision on August 25, 2015, and on September 1, 2016, the
Appeals Council denied plaintiff’s request for a review. 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.

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I. FACTS
Plaintiff was born on February 27, 1961 and has a high school education. Docket 8, p.
69. He was fifty-four years old at the time of the hearing, and at the time of the ALJ’s decision
he was six months shy of age fifty-five and the next age category of persons of advanced age.
Plaintiff’s past relevant work was as a mechanic. Id. at 97. Plaintiff contends that he became
disabled before his application for benefits as a result of “back problems, groin pain, possible
hernia, arthritis in hips, degenerative disc disease, cyst on left kidney, 35% overall hearing loss,
left and right rotator cuff problems, separated ac joint–had surgery, sinus issues, chest pains,
short winded, exposed to carc dust on last job.” Id. at 201.
The ALJ determined that plaintiff suffered from “severe” impairments including
“degenerative disc disease of the lumbar spine and osteoarthrosis,” (Docket 8, p. 49), but that
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). Id. at 50. 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 light work as defined in 20 CFR 404.1567(b) except he
can only occasionally stoop and crouch.
Docket 8, p. 51. After 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 52. After evaluating all of the evidence in
the record, including testimony of a VE, the ALJ held that plaintiff could perform the jobs of a
parking lot attendant, cafeteria attendant and usher. Id. at 56. As a result, the ALJ concluded
that plaintiff is not disabled under the Social Security Act. Id.
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Plaintiff contends that the ALJ erred failed to order a consultative examination despite
plaintiff’s request which resulted in a flawed RFC, she improperly concluded that plaintiff’s
mental issues were non-severe, and she improperly assumed that plaintiff’s gap in treatment was
due to a lack of need of treatment. Because the undersigned concludes that this case should be
remanded for a CE, the remaining issues need not be addressed.
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
does not meet this burden, at step four he must prove that he is incapable of meeting the physical

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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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.”
Crowley v. Apfel, 197 F.3d 194, 197 (5th Cir. 1999) (citation omitted). Conflicts in the evidence

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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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 electing not to order a consultative examination
requested by plaintiff’s counsel despite a lack of medical opinions from any treating or
examining source, even after the MRI of plaintiff’s back in 2015 showed a worsened condition.
The Commissioner posits that “the ALJ properly determined that the evidence as a whole
supported her determination that Plaintiff could perform light work with only occasional
stooping and crouching, and . . . the ALJ was under no duty to further develop the record.”
Docket 15, p. 14.
In the 3-sentence paragraph that contains the only discussion of the opinions expressed
by physicians as to plaintiff’s abilities, the ALJ afforded partial weight to the opinions of the
non-examining state agency medical consultants. Docket 8 at 54. The only discussion given of
these two opinions is that in December 2013, Dr. William Hand found plaintiff capable of a full
range of medium work and his finding was affirmed by Dr. Karen Hulett. These two physicians
reviewed plaintiff’s medical records and provided opinions on December 16, 2013 and January
13, 2014, respectively. Docket 8 at 102-10 and 112-20. Both of those opinions predate

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plaintiff’s May 2015 MRI which the ALJ found to be “slightly worse at L4-5 showing mild to
moderate left foraminal narrowing and lateral recess stenosis.” Docket 8 at 54. Neither of the
state agency physicians examined plaintiff, and neither had these medical records at the time
they provided their opinions. There are no medical opinions from any source, including state
agency physicians or plaintiff’s treating physicians, addressing plaintiff’s limitations and ability
to perform work-related functions at the time of or after the May 2015 MRI.
The Commissioner argues that opinions from consulting or examining physicians are
unnecessary as there is substantial evidence the plaintiff’s claimed back pain is not disabling.
Docket 15 at 13-14. Additionally, the Commissioner asserts that plaintiff’s failure to continue
the course of physical therapy and medical treatment demonstrates that his pain was not
sufficient to necessitate medical treatment and therefore is not disabling. Id at 18.
The court questions the Commissioner’s attempts to support an ALJ’s opinion that does
not appear to be based upon any medical opinion following the May 2015 MRI. 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
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

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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.
Here, to reach an RFC for the period after May 2015, the ALJ needed an opinion as to
plaintiff’s abilities and limitations from a physician who had the benefit of reviewing all of
plaintiff’s medical records and who, preferably, examined or treated the plaintiff. 20 CFR
404.1519a(b)(1) specifies that the Commissioner may order a consultative examination to make
a proper determination when evidence is needed that is not contained within the records of the
medical sources and when there is an indication of a change in condition that is likely to affect
the ability to work, but the current severity of the impairment is not established. This is exactly
the scenario plaintiff finds himself in today.
At the time of the treatment records which the agency physicians reviewed, plaintiff’s
treating physicians did not have the benefit of the May 2015 MRI and the Commissioner never
asked them to provide any opinion as to plaintiff’s ability to perform work related functions
following the May 2015 MRI. Their records do not contain opinions as to whether plaintiff can
perform the requirements of light duty work. Instead of properly obtaining a consultative
examination, the ALJ stated that “the file contains medical and other pertinent evidence in
Exhibits 6E, 4F, 5F, and 10F that is sufficient to support a decision" and she interpreted those
medical records on her own to reach plaintiff’s RFC that plaintiff can perform light work.

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Clearly, the ALJ found that the plaintiff’s change in condition as reflected in the May 2015 MRI
affects his ability to work, as this was the express basis for the ALJ’s assessment of a light duty
work RFC as opposed to the medium duty RFC previously assessed by the reviewing physicians.
However, the severity of the impairment was not established, which is particularly important in
plaintiff’s situation because at the time of the ALJ’s decision he was “borderline” moving to the
category of persons of advanced age, in which category an RFC of sedentary for a person with
plaintiff’s education and work experience results in a finding of disabled under the GRIDS.
The Commissioner argues that in formulating the RFC the ALJ properly considered
plaintiff’s subjective statements about his daily activities, finding they were inconsistent with the
degree of limitation alleged. Docket 15 at 12. However, all of the plaintiff’s subjective
statements of daily activities cited in the Commissioner’s brief – and almost all of those cited in
the ALJ’s decision – significantly predate the plaintiff’s May 2015 MRI showing a worsened
condition. Docket 15 at 12; Docket 8 at 58. Plaintiff testified at the hearing that he now uses a
cane to help him get up from a chair, he can no longer carry a basket of clothes to the laundry,
and he can carry only a half-gallon of milk – as opposed to a gallon – without problems. Docket
8 at 75, 81, 93. The court finds the plaintiff’s subjective statements of his daily activities in this
case do not obviate – but rather support – the need for a medical opinion as to his work-related
limitations.
Plaintiff’s medical history and his possible inability to obtain medical treatment due to
his financial condition warrant a consultative examination. The court is not convinced that
plaintiff is in fact disabled. However, the ALJ should have obtained an consultative examination
in order to properly consider plaintiff’s ability to perform work related functions in light of the

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most recent MRI.
Because the ALJ needed a consultative examination and opinion to support a proper RFC
regarding plaintiff’s ability to perform work related functions after the May 2015 MRI, the court
concludes the ALJ’s decision was not supported by substantial evidence. The case is remanded
to obtain a consultative examination and an opinion as to the extent that plaintiff’s limitations
impede his ability to perform work related functions.
IV. CONCLUSION
The Commissioner’s denial of benefits will be remanded for additional review in
accordance with this opinion. A final judgment in accordance with this memorandum opinion
will issue this day.
SO ORDERED, this, the 2nd day of June, 2017.
/s/ Roy Percy
UNITED STATES MAGISTRATE JUDGE

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