Bennett v. Colvin
MEMORANDUM OPINION AND ORDER denying 16 Motion for Summary Judgment. Ordered that the decision of the Commissioner is AFFIRMED. Signed by Magistrate Judge John C. Gargiulo on 2/22/17. (JCH)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
KURRI SKY BENNETT
CIVIL NO. 1:15-cv-233-JCG
CAROLYN W. COLVIN,
Acting Commissioner of Social
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT (ECF NO. 16) AND AFFIRMING THE
DECISION OF THE COMMISSIONER
Pursuant to 42 U.S.C. ' 405(g), Plaintiff Kurri Sky Bennett seeks judicial
review of a decision by the Commissioner of the Social Security Administration,
denying her claim for Supplemental Security Income under Title XVI of the Social
Security Act (SSI), 42 U.S.C. ' 1381-1383f. The Commissioner found that Plaintiff
was not under a disability since September 6, 2012, the date the application was
filed. Plaintiff has filed a Motion for Summary Judgment (ECF No. 16) and
Memorandum (ECF No. 17), and the Commissioner has filed a Memorandum in
Opposition (ECF No. 18). Having reviewed the administrative record, the
submissions of the parties, and relevant law, the Court concludes that the decision
of the administrative law judge (ALJ) is supported by substantial evidence and in
accord with relevant legal standards. Plaintiff’s Motion for Summary Judgment
should be denied, and the decision of the Commissioner affirmed.
Plaintiff filed an application for SSI on September 6, 2012, alleging disability
due to epilepsy, learning disabilities, and depression. (ECF No. 11, at 213). Plaintiff
was 19 years old on the date the application was filed. She completed high school
taking special education classes and received a certificate of completion but not a
diploma. (ECF No. 11, at 34, 51, 64).
Following denial of her claim initially and on reconsideration, Plaintiff
requested a hearing before an ALJ. ALJ William Wallis held a hearing on February
3, 2014. Id. at 28-57. Plaintiff appeared with counsel and testified. A vocational
expert (VE) and Plaintiff’s mother also testified.
On March 27, 2014, the ALJ issued a decision concluding that Plaintiff was
not disabled from September 6, 2012, through the date of the decision. Id. at 23. The
ALJ utilized the five-step sequential evaluation process to find Plaintiff not
disabled. 20 C.F.R. § 416.920(a).1 At step one, the ALJ determined that Plaintiff
had not engaged in substantial gainful activity since her alleged onset date. Id. at
15. At step two, the ALJ found that Plaintiff had severe impairments of a seizure
disorder, borderline intellectual functioning, an affective/mood disorder, and an
anxiety disorder. Id. At step three, the ALJ concluded that Plaintiff’s severe
impairments did not meet the requirements for presumptive disability under the
The ALJ uses a five-step sequential process to evaluate claims of disability and
decides whether: (1) the claimant is not working in substantial gainful activity; (2)
the claimant has a severe impairment; (3) the claimant’s impairment meets or equals
a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) the impairment
prevents the claimant from doing past relevant work; and (5) the impairment
prevents the claimant from doing any other work. 20 C.F.R. § 416.920(a).
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 16-18.
Next, the ALJ determined that Plaintiff retained the residual functional
capacity (RFC) to perform a full range of work at all exertional levels but with the
following nonexertional limitations:
Cannot be exposed to unprotected heights or moving machinery;
cannot engage in commercial driving as a job requirement; can
understand, remember, and carry out simple tasks and
instructions; can attend, concentrate, and persist for two-hour
periods; can at least occasionally interact with supervisors and
coworkers; can complete a normal workweek without
interruptions from psychologically-based symptoms; and can
respond appropriately to at least occasional workplace changes.
Id. at 18.
The ALJ concluded that Plaintiff’s medically determinable impairments could
reasonably be expected to cause some of the alleged symptoms but Plaintiff’s
“statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible . . .” Id. at 20.
At step four, the ALJ found that Plaintiff had no past relevant work experience.
Id. at 22. At step five, the ALJ relied upon the VE’s testimony to find Plaintiff capable
of performing simple, unskilled work that exists in significant numbers in the
national economy, specifically dishwasher (850,000 jobs nationally), hand packager
(300,000 jobs nationally), and assembler (6,000 jobs nationally). Id. at 22-23.
The Appeals Council denied Plaintiff’s request for review, rendering the
March 27, 2014, decision the final decision of the Commissioner. Id. at 5-7. Plaintiff
timely commenced this suit seeking judicial review under 42 U.S.C. § 405(g).
STANDARD OF REVIEW
The Court has jurisdiction over this action pursuant to 28 U.S.C. ' 1331 and
42 U.S.C. ' 405(g). Because both parties have consented under 28 U.S.C. ' 636(c) to
have a United States Magistrate Judge conduct all of the proceedings in this case,
the undersigned has the authority to issue this opinion and the accompanying final
Review of the Commissioner=s decision is limited to an inquiry into whether
there is substantial evidence on the record as a whole to support the findings of the
Commissioner and whether the correct legal standards were applied. 42 U.S.C. '
405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Falco v. Shalala, 27 F.3d
160, 163 (5th Cir. 1994). A'[S]ubstantial evidence' is less than a preponderance but
more than a scintilla." Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994).
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 resolve. If the
Commissioner=s factual findings are supported by substantial evidence, they are
conclusive and must be affirmed. Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir.
1990). The Court may not reweigh the evidence, try the issues de novo, or substitute
its judgment for the Commissioner's, "even if the evidence preponderates against
the [Commissioner's] decision. Bowling, 36 F.3d at 434.
At step three, the Commissioner considers the medical severity of the
claimant=s impairment(s) and determines whether the impairment(s) Ameets or
equals@ a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20
C.F.R. ' 416.920(a)(4)(iii), (d). Plaintiff maintains that the ALJ erred when he found
that Plaintiff did not meet or equal Listing 12.05(C).
AThe regulations recognize that certain impairments are so severe that they
prevent a person from pursuing any gainful work.@ Heckler v. Campbell, 461 U.S.
458, 460 (1983). A claimant who establishes that she suffers from an impairment
listed in 20 C.F.R. pt. 404, subpt. P, App. 1, will be considered disabled without
further inquiry. Id. The listings
are descriptions of various physical and mental illnesses
and abnormalities, most of which are categorized by the
body system they affect. Each impairment is defined in
term of several specific medical signs, symptoms, or
laboratory test results. For a claimant to show that his
impairment matches a listing, it must meet all of the
specified medical criteria. An impairment that manifests
only some of those criteria, no matter how severely, does
Sullivan v. Zebley, 493 U.S. 521, 529 (1990).
The burden of proof to meet a listing is Ademanding and stringent.@ Falco, 27
F.3d at 162. The responsibility for determining whether a claimant meets a listing
is reserved to the Commissioner. 20 C.F.R. ' 416.927(e)(2).
Listing 12.05 consists of an introductory paragraph or Acapsule definition,@
setting forth the diagnostic criteria, followed by four Aseverity prongs@ (paragraphs
A through D). In order to satisfy Listing 12.05, the claimant must meet both the
capsule definition and one of the four severity prongs. Randall v. Astrue, 570 F.3d
651, 659 (5th Cir. 2009). The version of Listing 12.05 in effect at the time Plaintiff
filed her application for SSI on September 6, 2012, provides:
12.05 Mental Retardation: Mental retardation refers to
significantly subaverage general intellectual functioning
with deficits in adaptive functioning initially manifested
during the developmental period: i.e., the evidence
demonstrates or supports onset of the impairment before
The required level of severity for this disorder is met when
the requirements in A, B, C, or D are satisfied.
C. A valid verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental impairment
imposing an additional and significant work-related
limitation or function; . . . .
20 C.F.R. Part 404, Subpart P, Appendix 1, §12.05 (effective June 13, 2012, to April
The ALJ found that Plaintiff did not meet the “capsule definition” of Listing
because the claimant’s reported level of functioning is
much greater. In her function report, she reported being
able to play video games, communicate with others online
via Facebook, and perform basic household chores (Exhibit
B10E). She informed Dr. Matherne that she could dress
without assistance (Exhibit B7F). The evidence of record
also demonstrates that she has engaged in significant
dating activities (Exhibits B8F, B11F). All of this tends to
demonstrate greater functional abilities than those
contemplated by this criterion.
(ECF No. 11, at 18).
The ALJ also found that Plaintiff did not meet the “paragraph C” criteria of
Listing 12.05 because Plaintiff
does not have a valid verbal, performance, or full scale IQ
of 60 through 70 and a physical or other mental
impairment imposing an additional and significant workrelated limitation of function. While the claimant
reportedly had a full scale IQ of 62 according to November
2009 testing (Exhibit B7F), the evidence of record
demonstrates greater functional abilities than those
generally consistent with a full scale IQ of 62.
The evidence of record notes that she is able to date,
performs household chores, engages in independent selfcare, plays video games, and communicates with her
friends online. This demonstrates significant adaptive
functioning that is not consistent with subaverage general
intellectual functioning with deficits in adaptive
(ECF No. 11, at 18).
The ALJ determined that Plaintiff’s adaptive functioning was inconsistent
with presumptive disability under Listing 12.05(C). Adaptive activities include
“cleaning, shopping, cooking, taking public transportation, paying bills, maintaining
a residence, caring appropriately for your grooming and hygiene, using telephones
and directories, and using a post office.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1
12.00(C)(1). The ALJ’s determination that Plaintiff did not meet Listing 12.05(C)
because her level of functioning was “much greater” is supported by substantial
evidence, which the ALJ specifically cited to in his decision.
The ALJ cited a Function Report completed by Plaintiff on January 27, 2013.
Plaintiff stated [all sic in original]:
I play the video game for a little while. Then get on my
computer and chat with my friends on Facebook. I go a take
me a shower to fully wake up. I try to clean up my room
then do dishes then clean up in the bathroom then do my
(ECF No. 11, at 249). Plaintiff reported that she dresses herself. Id. at 250. She
stated that she can prepare simple meals “but have to be watch if I cook.” Id. at 25051. She can “do dishes,” laundry, and “clean up.” Id. at 251. She shops for clothes
and personal items “once every couple weeks.” Id. at 252. Plaintiff’s mother stated
that Plaintiff “must be supervised to ensure medication compliance, but that she is
getting better with this.” Id. at 19. The ALJ noted that, in June 2013, Plaintiff’s
mother reported a belief that Plaintiff was capable of more than she was actually
doing. Id. at 419.
Plaintiff reported that her hobbies and interests include “computer games,
watching movies/TV, on FB, hanging with friends.” Id. at 255. Plaintiff told Dr.
Matherne that she “spends time talking on the cellphone. She watches movies on
her X-Box. . . . She does enjoy music and also enjoys playing the keyboard.” Id. at
367. As support for his statement that Plaintiff “engaged in significant dating
activities,” the ALJ cited to mental health case notes indicating that Plaintiff
regularly discussed having a boyfriend and dating, including dating online. Id. at
380, 415, 421-22. The ALJ noted that in April 2013, Plaintiff was dating a man
eight years her senior. Id. at 421.
Plaintiff objects to the findings of the Commissioner, on the basis that there
was evidence in the record that could have supported a finding that Plaintiff met
Listing 12.05(C). However, conflicts in the evidence are for the Commissioner to
resolve. Plaintiff provides no case or statutory authority supporting her assertion
that her ability to date, perform self-care, play video games, talk on the phone, and
communicate online are not activities indicative of a greater level of functioning
than contemplated by Listing 12.05(C). The ALJ’s finding that Plaintiff does not
meet the capsule definition’s adaptive functioning criteria is supported by
substantial evidence and is therefore conclusive. It is not necessary to discuss the
severity prong criteria.
Evaluation of Expert Opinion Evidence
The ALJ gave “significant weight” to the opinions of non-examining State
agency consultants who concluded that “records support the presence of significant
physical and psychological impairments that are generally well controlled with
treatment.” (ECF No. 11, at 22). The ALJ gave “less weight to the opinion of
consultative examiner Dr. Matherne (Exhibit B7F), who opined after a single visit
with Plaintiff that she had moderate impairment in her ability to interact with
others in the workplace and to perform routine, repetitive tasks.” Id. Plaintiff
maintains that “the ALJ failed to provide a sound explanation for discounting Dr.
Matherne’s opinion.” (ECF No. 17, at 15). Plaintiff argues that the RFC should have
included Dr. Matherne’s opinion that Plaintiff was “moderately impaired” in her
ability to perform routine, repetitive tasks and interact with coworkers and
In evaluating a disability claim, an ALJ is to consider all medical opinions in
the record. 20 C.F.R. §§ 404.1527(b) and 416.927(b). “[A]lthough the opinion of an
examining physician is generally entitled to more weight than the opinion of a nonexamining physician, the ALJ is free to reject the opinion of any physician when the
evidence supports a contrary conclusion.” Oldham v. Schweiker, 660 F.2d 1078,
1084 (5th Cir. 1981).
The ALJ explained that he discounted Dr. Matherne’s opinion that Plaintiff
was “moderately impaired in her ability to perform routine, repetitive tasks” and
“moderately impaired in her ability to interact with co-workers and supervisors”
because “[t]he term moderate is vague.” (ECF No. 11, at 22). In Davis v. Colvin, the
Fifth Circuit found no reversible error where an ALJ made a similar ruling. 600 F.
App’x 249, 250 (5th Cir. 2015). The ALJ in Davis did not allow the claimant’s
attorney to use the term “moderate” when cross-examining the VE because
“moderate” is a medical term and not a vocational term. See Order  in Davis v.
Astrue, No. 2:11-cv-2015 (W.D. La. July 18, 2013). The term “moderate,” which was
used on a medical source statement, was not defined or translated into a vocational
limitation of use to the VE.2 The ALJ’s finding here that the term “moderate” is
vague in a vocational context is supported by Davis. The ALJ was not required to
include limitations defined by this non-vocational term in the RFC.
The ALJ’s conclusion in the RFC that Plaintiff “can understand, remember,
and carry out simple tasks and instructions” and “can at least occasionally interact
with supervisors and coworkers” is not an unsupported layman’s opinion, as
Plaintiff alleges. The ALJ adopted these findings from the non-examining State
agency consultants, Amy Hudson, Ph.D., and Amy Morgan, Ph.D., who reviewed the
entirety of Plaintiff’s school, disability, and medical records, including Dr.
Matherne’s consultative exam report, and found:
Per CE and 3ADLs, she is capable of managing personal
care, playing video games, eating out, using a computer,
simple food preparation, shopping, and counting change.
She is supervised largely due to seizure risk. She is
reportedly easily distracted. Moderate social, adaptive and
cognitive limitations due to mild MR and adjustment DO
w/ depressive features. Claimant would be capable of
performing routine, repetitive tasks without excessive
interruptions from psychologically based symptoms.
(ECF No. 11, at 115). Dr. Hudson and Dr. Morgan also concluded that Plaintiff “can
concentrate and attend for 2-hour periods, interact with supervisors and coworkers
at a very basic level, and adapt adequately in order to complete a normal work week
without excessive interruption from psychologically based symptoms.” Id. at 119,
Words such as “frequently,” “occasionally,” and “never,” are vocational terms used
by the Department of Labor and the Dictionary of Occupational Titles.
The ALJ was allowed to rely on these non-examining State agency
consultants’ opinions because he adequately explained his reasons for discounting
Dr. Matherne’s opinion. The consultants’ opinions are substantial evidence
supporting the ALJ’s RFC findings, and these findings are therefore conclusive. The
Court may not reweigh the evidence.3
The ALJ concluded that Plaintiff was not capable of performing certain tasks
but was not as limited as she alleged. (ECF No. 11, at 21). The ALJ found that
Plaintiff’s “medically determinable impairments could reasonably be expected to
cause some of the alleged symptoms; however, the claimant’s statements concerning
the intensity, persistence and limiting effects of these symptoms are not entirely
credible . . . .” Id. at 20. Plaintiff contends that “the ALJ failed to support the
conclusion that Plaintiff’s allegations regarding seizures were not credible.” (ECF
No. 17, at 16).
The ALJ cited to the record where he found inconsistencies supporting his
credibility determination. The ALJ noted that in a September 2013 seizure report,
Plaintiff indicated that she had daily seizure events, yet her last noted seizure
event was over two weeks prior to the report’s date. (ECF No. 11, at 19, 270-71).
Plaintiff provides no case or statutory authority to support her allegation that
“playing a video games does not correlate with performance of simple, routine,
work-related tasks on a regular and continuing basis . . . .” (ECF No. 17, at 14).
Plaintiff’s mother reported that while Plaintiff experiences seizures, she “can go for
months without a seizure event.” Id. at 19. In an October 2012 treatment note,
Plaintiff stated to a mental health professional that her last seizure was about a
year before. Id. at 382. Plaintiff told Dr. Matherne that she experienced seizures
“from time to time.” Id. at 366.
The ALJ compared the witnesses’ statements to the record evidence and
properly performed his function as the trier of fact to make a credibility
determination. The ALJ’s credibility determination is entitled to considerable
deference because the ALJ was present and enjoyed the benefit of observing the
witnesses’ person and testimony at the hearing. Loya v. Heckler, 707 F.2d 211, 215
(5th Cir. 1983). Plaintiff objects to the ALJ’s credibility determination on the basis
that there was evidence in the record that could have supported a different finding.
However, conflicts in the evidence are for the Commissioner to resolve. The evidence
supporting the ALJ’s credibility determination easily exceeds “more than a mere
scintilla” of evidence, and the finding is therefore conclusive. Bowling, 36 F.3d at
434. The Court may not reweigh the evidence.
Hypotheticals to the VE
To determine the extent to which Plaintiff’s limitations eroded the
occupational base, the ALJ relied on the testimony of a VE who found that jobs
existed in the national economy for an individual with Plaintiff’s age, education,
work experience, and RFC. (ECF No. 11, at 23). Plaintiff maintains that “the VE’s
testimony was in response to an incomplete hypothetical question that did not
account for all of Plaintiff’s limitations.” (ECF No. 17, at 16). As already discussed,
the Commissioner’s findings regarding Plaintiff’s limitations are supported by
substantial evidence. The ALJ need only incorporate into a hypothetical the
impairments he finds supported by substantial evidence. Masterson v. Barnhart,
309 F.3d 267, 273-74 (5th Cir. 2002). Given that the ALJ posed hypotheticals to the
VE that reasonably incorporated the restrictions that the ALJ recognized, the ALJ
properly relied on the VE’s testimony to deny Plaintiff’s claim. Bowling, 36 F.3d at
IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiff’s
Motion for Summary Judgment (ECF No. 16) is DENIED and the decision of the
SO ORDERED, this the 22nd day of February, 2017.
/s/ John C. Gargiulo
JOHN C. GARGIULO
UNITED STATES MAGISTRATE JUDGE
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