Necaisse v. Colvin
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 19 Report and Recommendations, denying 12 Motion for Summary Judgment filed by Rodney John Necaisse. Nancy A. Berryhill, Acting Commissioner of Social Security, is substituted as Defendant in this cause. Clerk of Court is ordered to reflect this change on the docket. The decision of the Commissioner is Affirmed. Signed by District Judge Halil S. Ozerden on 3/7/2017 (wld)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
RODNEY JOHN NECAISSE
CAROLYN W. COLVIN,
Acting Commissioner of Social
CIVIL NO.: 1:15cv219-HSO-JCG
ORDER OVERRULING PLAINTIFF RODNEY NECAISSE’S OBJECTION
, ADOPTING THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION , DENYING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT , AND AFFIRMING THE DECISION OF THE
BEFORE THE COURT is the Objection  filed by Plaintiff Rodney
Necaisse (“Plaintiff”) to the Report and Recommendation  of United States
Magistrate Judge John C. Gargiulo. After reviewing the record and relevant legal
authority, the Court finds that Plaintiff’s Objection  should be overruled, that
the Magistrate Judge’s Report and Recommendation  should be adopted in its
entirety as the finding of the Court, that Plaintiff’s Motion for Summary Judgment
 should be denied, and that the decision of Defendant,1 Acting Commissioner of
Social Security (“Defendant” or “Commissioner”), denying disability benefits should
Nancy A. Berryhill is now the Acting Commissioner of Social Security, and will be
substituted for Acting Commissioner Carolyn W. Colvin as Defendant pursuant to Rule
25(d) of the Federal Rules of Civil Procedure. See Def.’s Not.  at 1 n.1.
Plaintiff was born in 1963, and stopped working in 2005 due to neck and back
problems for which he underwent spinal surgeries in 2000, 2005, and 2007. R. 
at 75. Plaintiff also suffers from depression. Id. On October 3, 2010, Plaintiff filed
an application for Social Security disability insurance benefits, claiming that his
disability began on October 9, 2008. Pl.’s Mem. Supp. Mot.  at 1. Plaintiff
alleges disability due to “back pain, neck pain, leg and foot cramps, anxiety, and
The Social Security Administration initially denied Plaintiff’s application on
January 27, 2011, and thereafter upheld the decision upon reconsideration on
March 14, 2011. Id. After a hearing before Administrative Law Judge James
Barter (“ALJ Barter”) on March 19, 2012, the ALJ issued a decision on April 27,
2012, concluding that Plaintiff has the residual functional capacity (“RFC”) to
perform unskilled sedentary work and is not disabled. Id.
Plaintiff sought review of ALJ Barter’s decision before the Appeals Council,
which vacated the decision and remanded the case with instructions to provide a
“more comprehensive discussion of the impact of claimant’s mental limitations” on
Plaintiff’s RFC. R.  at 233. The Appeals Council instructed the ALJ to give
further consideration to the opinions of treating physician Dr. Gosey, including a
December 2011 opinion rendered after the date last insured, because earlier
treating notes from the relevant period reflected findings similar to those in the
December 2011 opinion. Id. at 233-34. Lastly, the Appeals Council ordered the ALJ
to obtain supplemental evidence from a vocational expert, if warranted by the
expanded record on remand, to clarify the effect of Plaintiff’s assessed limitations on
his occupational base. Id. at 234.
On remand, Administrative Law Judge Wallace Weakley (“ALJ Weakley”)
conducted a video hearing on November 20, 2013, with testimony from Plaintiff and
an impartial vocational expert. R.  at 70. ALJ Weakley subsequently issued a
decision on February 7, 2014, finding that Plaintiff is not disabled. Id. at 70-81.
The Appeals Council denied Plaintiff’s request to review ALJ Weakley’s decision.
Id. at 5-8.
Plaintiff filed this civil action on July 8, 2015, seeking a reversal of the
Commissioner’s decision to deny disability benefits, or, alternatively, remand of the
case for further hearing, and an award of attorneys’ fees. Compl.  at 1-2. On
February 15, 2016, Plaintiff filed a Motion for Summary Judgment  seeking the
Following briefing by the parties, the Magistrate Judge issued a Report and
Recommendation  that Plaintiff’s Motion for Summary Judgment  be denied
and that the decision of the Commissioner be affirmed. Plaintiff filed an Objection
, and Defendant filed a Notice  that she would not file a response to the
Objection , but urged the Court to adopt the Magistrate Judge’s Report and
Recommendation  and affirm the denial of benefits. Def.’s Not.  at 1.
Standard of Review
Because Plaintiff has filed an Objection  to the Magistrate Judge’s Report
and Recommendation , the Court is required to “make a de novo determination
of those portions of the report or specified proposed findings or recommendations to
which objection is made.” 28 U.S.C. § 636(b)(1); see also Longmire v. Gust, 921 F.2d
620, 623 (5th Cir. 1991) (a party filing a written objection is “entitled to a de novo
review by an Article III Judge as to those issues to which an objection is made”). In
reviewing the decision, the Court “considers only whether the Commissioner applied
the proper legal standards and whether substantial evidence in the record supports
[the] decision.” Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012).
“Substantial evidence is that which is relevant and sufficient for a reasonable
mind to accept as adequate to support a conclusion; it must be more than a scintilla,
but it need not be a preponderance.” Anthony v. Sullivan, 954 F.2d 289, 295 (5th
Cir. 1992). “A finding of no substantial evidence is appropriate only if no credible
evidentiary choices or medical findings support the decision.” Harris v. Apfel, 209
F.3d 413, 417 (5th Cir. 2000). Under this standard, a court cannot “re-weigh the
evidence or substitute [its] judgment for that of the Commissioner.” Id.
To the extent that a party does not object to portions of a magistrate judge’s
report and recommendation, the Court need not conduct a de novo review of the
recommendation. See 28 U.S.C. § 636(b)(1). In such cases, the Court need only
review the report and recommendation and determine whether it is either clearly
erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.
Standard for Entitlement to Social Security Benefits
The United States Court of Appeals for the Fifth Circuit has explained that
to qualify for disability insurance benefits . . . a claimant must suffer
from a disability. See 42 U.S.C. § 423(d)(1)(A). The Social Security Act
defines a disability as a “medically determinable physical or mental
impairment lasting at least twelve months that prevents the claimant
from engaging in substantial gainful activity.” Masterson v. Barnhart,
309 F.3d 267, 271 (5th Cir. 2002); see also 42 U.S.C. § 423(d)(1)(A). The
Commissioner typically uses a sequential five-step process to determine
whether a claimant is disabled within the meaning of the Social Security
Act. 20 C.F.R. § 404.1520; see also Waters v. Barnhart, 276 F.3d 716,
718 (5th Cir. 2002).
Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014). The Fifth Circuit has
described the five-step analysis as follows:
First, the claimant must not be presently working. Second, a claimant
must establish that he has an impairment or combination of
impairments which significantly limit his physical or mental ability to
do basic work activities. Third, to secure a finding of disability without
consideration of age, education, and work experience, a claimant must
establish that his impairment meets or equals an impairment
enumerated in the listing of impairments in the appendix to the
regulations. Fourth, a claimant must establish that his impairment
prevents him from doing past relevant work. Finally, the burden shifts
to the [Commissioner] to establish that the claimant can perform
relevant work. If the [Commissioner] meets this burden, the claimant
must then prove that he cannot in fact perform the work suggested.
Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991) (internal citations and quotation
omitted). A claimant bears the burden of proof with respect to the first four steps of
the inquiry. Id.
The Administrative Law Judge’s Decision
After conducting the five-step analysis, ALJ Weakley issued an adverse
decision that Plaintiff was not disabled within the meaning of the Social Security
Act from the onset date of October 9, 2008, until the date last insured, December 31,
2010. R.  at 70-81. First, the ALJ found that Plaintiff had not engaged in
substantial gainful activity during this time period. Id. at 72. Second, the ALJ
determined that Plaintiff has the following severe physical and mental impairments
that significantly interfere with Plaintiff’s ability to perform employment-related
activities: borderline intellectual functioning; unspecified depressive disorder; left
L5 radiculopathy; status-post C5-6 fusion; status-post L4-5 laminotomy; and statuspost lumbar surgery. Id. at 72-73.
Third, the ALJ found that Plaintiff’s combination of impairments did not
meet or equal the severity of one of the listed impairments in 20 C.F.R Part 404,
Subpart P, Appendix 1. Id. at 73. The ALJ considered listing 1.04, which concerns
disorders of the spine, and concluded that Plaintiff does not have nerve root
compression, spinal arachnoiditis, or lumbar spinal stenosis resulting in an
inability to ambulate effectively as required in order to meet the listing. Id.
ALJ Weakley also considered listing 12.04, which relates to depressive,
bipolar, and related disorders, and concluded that Plaintiff does not meet the
severity of either paragraph B or C of the listing. Id. at 73-74. Plaintiff’s mental
impairments did not satisfy paragraph B of the listing, which evaluates limitations
in mental functioning, when Plaintiff experienced only mild limitations in his
activities of daily living and social functioning, and experienced moderate
limitations in maintaining concentration, persistence, or pace, with no episodes of
decompensation for an extended duration of time. Id. Plaintiff also did not satisfy
paragraph C of the listing, which contains criteria for evaluating mental disorders
that are “serious and persistent.” Id. at 74.
Fourth, the ALJ determined that, while Plaintiff is unable to perform past
relevant work as a casting operator, Plaintiff has the RFC to perform unskilled
sedentary work with a sit/stand option whereby Plaintiff can sit for up to twenty
minutes and stand for up to fifteen minutes at a time; stoop, bend, and climb stairs
occasionally; and stand or sit for eight hours total in a workday. Id. at 74, 79. The
ALJ concluded that Plaintiff can walk for only 50-100 yards at a time and would not
be able to “balance or work around heights.” Id. at 74. The ALJ further determined
that Plaintiff’s moderate limitations in maintaining concentration, persistence, or
pace restricts Plaintiff to the performance of routine tasks without production
quotas. Id. at 74-75.
In determining Plaintiff’s RFC, the ALJ found that Plaintiff’s medically
determinable mental and physical impairments could reasonably be expected to
cause his alleged symptoms. Id. at 76. In evaluating the intensity, persistence, or
functionally limiting effects of pain or other symptoms, the ALJ found that
Plaintiff’s statements regarding these symptoms were not entirely credible and
were not substantiated by the objective medical evidence. Id. at 76-77. For
example, the ALJ found that Plaintiff’s ability to function well after running out of
pain medication suggested that his pain was not as limiting as he contends. Id. at
77. Additionally, the medical record contained no diagnostic tests indicating that
Plaintiff could not work during the relevant period, and the treating physician Dr.
Gosey’s notes regarding Plaintiff’s back and neck problems were mostly “just a
recitation of [Plaintiff’s] subjective complaints.” Id. at 76-77.
The ALJ further concluded that the evidence, including the results of mental
status examinations conducted in April 2009 and January 2011, did not show that
Plaintiff suffers from a disabling mental condition. Id. at 77-78. The ALJ gave
significant weight “to the objective details and chronology of the record,” as well as
to the opinions of the examining psychologist, Dr. Hetrick, and a State agency
psychologist, Dr. Hudson, that were consistent with the objective evidence. Id. at
Finally, the ALJ determined that, given Plaintiff’s RFC, age, education, and
work experience, “it is clear that [Plaintiff] could perform many work-related
activities within a restricted range of sedentary work” that require only “routine,
repetitive tasks with no production quotas.” Id. at 79. The vocational expert
testified that Plaintiff is able to perform sedentary, unskilled positions such as
booth cashier, order taker, or gate tender, that exist in significant numbers in the
national economy. Id. at 80. Accordingly, the ALJ concluded that Plaintiff is not
disabled as defined in the Social Security Act, from the alleged onset date of October
9, 2008, through December 31, 2010, the date last insured. Id.
The Magistrate Judge’s Report and Recommendation 
On January 30, 2017, the Magistrate Judge entered his Report and
Recommendation  that Plaintiff’s Motion for Summary Judgment  be denied,
and that the Commissioner’s decision to deny disability benefits be affirmed because
it was supported by substantial evidence and applied the correct legal standards. R.
& R.  at 1.
The Magistrate Judge found that, although the ALJ provided a “scant
discussion” of Plaintiff’s reading comprehension, the record contained sufficient
evidence to support the ALJ’s implicit finding that Plaintiff was not illiterate. Id. at
11-12. Because the record contained sufficient evidence for the ALJ to reach a
disability determination, an additional consultative examination to specifically
assess Plaintiff’s ability to read was not necessary. Id.
The Magistrate Judge also determined that the ALJ complied with the order
of the Appeals Council to provide a further evaluation of Dr. Gosey’s opinions
regarding Plaintiff’s physical impairments, and that the ALJ properly disregarded
Dr. Gosey’s conclusion that Plaintiff is disabled because “the ALJ has sole
responsibility for determining a claimant’s disability status.” Id. at 13-14 (quoting
Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990)). Finally, the Magistrate Judge
afforded “great deference” to the ALJ’s credibility determination regarding
Plaintiff’s testimony, finding that it was supported by substantial objective evidence
contradicting Plaintiff’s reported symptoms. Id.
Plaintiff’s Objection 
Plaintiff objects to the Magistrate Judge’s Report and Recommendation ,
arguing that it was improper for the Magistrate Judge to justify “the ALJ’s failure
to discuss illiteracy or order a consultative evaluation to assess illiteracy” by
pointing to the absence of evidence in the record that Plaintiff was illiterate, when
the ALJ did not make these specific findings in his opinion. Obj. . at 1-2.
Plaintiff is correct that the ALJ made no assessment of Plaintiff’s reading
comprehension in particular; however, the ALJ was not required to make such a
finding in order to determine whether Plaintiff was disabled.
Plaintiff also objects to the Magistrate Judge’s finding that the ALJ did not
err when he implicitly rejected the August 2013 Physical Medical Source Statement
of Dr. Gosey by failing to discuss it in the decision. Obj.  at 2. However, the
Court concludes that the ALJ provided an appropriate evaluation of Dr. Gosey’s
opinions and explained the weight given to them.
The ALJ’s Decision is Supported by Substantial Evidence
Neither illiteracy nor borderline intellectual functioning is one of the listed
impairments in 20 C.F.R Part 404, Subpart P, Appendix 1 to be considered in the
third step of the ALJ’s inquiry. See Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir.
1990) (finding “no support for the conclusion that [the claimant’s] low mental
capacity is a non-exertional impairment rendering him entirely unable to perform
light or sedentary work”). Plaintiff’s reading ability is instead relevant at the fifth
step of the inquiry, in which the ALJ determines whether jobs exist in significant
numbers in the national economy that Plaintiff could perform, given his RFC and
the vocational factors of age, education, and work experience. 20 C.F.R. § 404.1520;
Education as a vocational factor “is primarily used to mean formal schooling
or other training which contributes to [Plaintiff’s] ability to meet vocational
requirements, for example, reasoning ability, communication skills, and
arithmetical ability.” 20 C.F.R. § 404.1564(1). Consideration of this factor includes
a claimant’s illiteracy or inability to communicate in English. Id. The agency
regulations define illiteracy as
the inability to read or write. [The Social Security Administration]
consider[s] someone illiterate if the person cannot read or write a simple
message such as instructions or inventory lists even though the person
can sign his or her name. Generally, an illiterate person has had little
or no formal schooling.
20 C.F.R. § 404.1564(b)(1).
The ALJ clearly considered Plaintiff’s education as a vocational factor in
concluding that Plaintiff is able to adjust to other work, as required by 20 C.F.R. §
404.1520(g)(1). The ALJ specifically found that Plaintiff has a high school
education and is able to communicate in English. R.  at 79 (citing 20 C.F.R. §
404.1564). In considering Plaintiff’s RFC and vocational factors in conjunction
with the Medical-Vocational Guidelines, the ALJ found that Plaintiff’s ability to
perform the full range of sedentary work was impeded by additional limitations. Id.
at 80. In order to determine the extent to which these limitations affected
Plaintiff’s ability to perform unskilled sedentary work, the ALJ obtained testimony
from the vocational expert who concluded that “given all of these factors [Plaintiff]
would have been able to perform the requirements of representative occupations.”
Id. Moreover, the ALJ provided a substantial discussion of the medical record
concerning Plaintiff’s intellectual functioning. Id. at 77-78.
The Court finds that ALJ Weakley did not err by failing to order a separate
consultative examination to assess Plaintiff’s literacy. “An ALJ must order a
consultative evaluation when such an evaluation is necessary to enable the ALJ to
make the disability determination.” Brock v. Chater, 84 F.3d 726, 728 (5th Cir.
1996) (citation omitted); see also Johnson v. Sullivan, 894 F.2d 683, 686 (5th Cir.
1990) (finding that below average intelligence does not qualify as a non-exertional
impairment, such that the ALJ was not required to consult a vocational expert to
make a disability determination). Based on the ALJ’s consideration of testimony
from the vocational expert as well as a consultative psychological examination, the
Court is persuaded that the ALJ satisfied his duty to fully develop the record
regarding Plaintiff’s intellectual functioning. See R.  at 78-79.
Although the ALJ was not required to make a finding as to whether Plaintiff
is illiterate or not, the Court notes that the record contradicts Plaintiff’s assertion
that he is illiterate, as defined by 20 C.F.R. § 404.1564. It is undisputed that
Plaintiff graduated from high school, is able to drive, and was employed for over two
decades. R.  at 75; see also Pena v. Astrue, 271 F. App’x 382, 384 (5th Cir. 2008)
(affirming finding that the plaintiff was functionally literate when he read at a first
grade level, passed the sixth grade, could “read and write ‘a little bit’ but not well,
and . . . had difficulty with reading comprehension”).
Furthermore, Plaintiff has failed to point to any medical opinion in the record
that his illiteracy or low intellectual functioning renders him unable to engage in
the type of work recommended by the ALJ. See R. & R.  at 12; see also
Hernandez v. Astrue, 278 F. App’x 333, 339 (5th Cir. 2008) (substantial evidence
supported the finding that the plaintiff possessed the capacity to perform certain
jobs when he “completed an initial disability report himself and indicated that he
could speak, understand, read, and write in English” and “testified at the hearing
that he could speak some English but has trouble understanding English speakers
who speak too quickly”).
Although Dr. Hetrick suggested that Plaintiff “may have a reading disorder”
and could benefit from additional evaluation of his intellectual and academic
functioning, the ALJ was not bound to follow this suggestion. R.  at 419. The
ALJ was also not required to address every piece of evidence, particularly Plaintiff’s
subjective statements regarding his reading comprehension that were contradicted
by objective evidence in the record. Falco v. Shalala, 27 F.3d 160, 163-64 (5th Cir.
1994) (finding that the ALJ need not specify which piece of evidence was accepted or
rejected when articulating reasons for rejecting a claimant’s subjective complaints).
Plaintiff’s Objection  on this basis will be overruled.
Plaintiff further objects to the Magistrate Judge’s determination that the
ALJ did not err when he implicitly rejected the August 2013 Physical Medical
Source Statement of Dr. Gosey by failing to discuss it in the decision. Obj.  at 2.
The 2013 opinion at issue briefly describes Plaintiff’s chronic pain and reflects Dr.
Gosey’s answers to questions printed on a form. R.  at 497-501.
Dr. Gosey indicated that Plaintiff experiences pain or other symptoms
“constantly,” that his impairments are expected to last at least twelve months, and
that Plaintiff is moderately limited in his ability to deal with work stress. Id. at
498. Dr. Gosey opined that Plaintiff is able to walk three or four city blocks without
resting, can sit or stand continuously for thirty minutes at a time, can sit or stand
total for two hours each in an eight-hour workday, and should walk for five to ten
minutes out of every thirty minutes. Id. at 499. The opinion stated that Plaintiff
would need a job that allowed him to shift positions from walking to sitting to
standing at will, and to take occasional unscheduled breaks for fifteen to thirty
minutes. Id. Dr. Gosey indicated that Plaintiff would be able to occasionally lift up
to ten pounds, that he would not have any significant limitations performing
repetitive movements of his hands or fingers, that Plaintiff was able to bend and
twist at the waist, and that he could be expected to be absent from work about once
a month on account of his impairments. Id. at 500.
Although the opinion was rendered after the date last insured, Plaintiff
argues that Dr. Gosey opined on limitations that had been present since Dr. Gosey
began treating Plaintiff in 2005. Obj.  at 2. As an initial matter, the Court
notes that the ALJ was not required to consider evidence relating “to a disability or
to the deterioration of a previously non-disabling condition resulting after the
period for which benefits are sought.” Ripley v. Chater, 67 F.3d 552, 555 n.14 (5th
Cir. 1995). Assuming that the ALJ should have discussed the 2013 Physician
Medical Source Statement specifically, it does not appear that the outcome of the
determination would have been any different if such a discussion had been included.
See id. at 555 (material evidence is that which not only relates to the relevant time
period, but which also has a reasonable probability of changing the outcome of the
It is apparent that the ALJ considered Dr. Gosey’s treatment notes from the
relevant period and included a discussion of Dr. Gosey’s opinions of Plaintiff’s
physical impairments in the decision. R.  at 76-78. The ALJ’s findings that
Plaintiff has the RFC to perform unskilled sedentary work with a sit/stand option
whereby Plaintiff could sit for up to twenty minutes and stand for up to fifteen
minutes at a time; stoop, bend, and climb stairs occasionally; stand or sit for eight
hours total in a workday, and walk for short distances are consistent with Dr.
Gosey’s 2013 recommendations. R.  at 74, 79.
Although he considered Dr. Gosey’s opinions, the ALJ stated that they were
afforded little weight because “it is apparent that he relied quite heavily on the
subjective report of symptoms and limitations provided by [Plaintiff], and seemed
uncritically to accept as true most, if not all, of what [Plaintiff] reported.” R.  at
78. The Court concludes that the ALJ complied with the instructions of the Appeals
Council to provide a further evaluation of Dr. Gosey’s opinions and to explain the
weight given to them.
The Court finds that there is substantial evidence supporting the ALJ’s
determination that Plaintiff is not disabled; therefore, Plaintiff’s Objection  will
be overruled, and his Motion for Summary Judgment  will be denied. The
Magistrate Judge’s Report and Recommendation  will be adopted as the opinion
of this Court, together with the additional findings made herein.
As required by 28 U.S.C. § 636(b)(1), the Court has conducted a de novo
review of the record and those matters raised in Plaintiff’s Objection . For the
reasons set forth above, the Court concludes that Plaintiff’s Objection  should be
overruled and his Motion for Summary Judgment  should be denied. To the
extent Plaintiff did not object to portions of the Magistrate Judge’s Report and
Recommendation , the Court finds that those portions are neither clearly
erroneous nor contrary to law. Wilson, 864 F.2d at 1221.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Objection
 filed by Plaintiff Rodney Necaisse is OVERRULED, and the Report and
Recommendation  of Magistrate Judge John C. Gargiulo is adopted in its
entirety as the finding of this Court, along with the additional findings made
IT IS, FURTHER, ORDERED AND ADJUDGED that Nancy A. Berryhill,
Acting Commissioner of Social Security, is substituted as Defendant in this cause.
The Clerk of Court is ordered to reflect this change in the docket.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiff’s Motion
for Summary Judgment  is DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that the decision of the
Commissioner is AFFIRMED. A separate judgment will be entered in accordance
with this Order as required by Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 7th day of March, 2017.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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