Davis v. Colvin
MEMORANDUM OPINION AND ORDER denying 14 Motion for Summary Judgment and the decision of the Commissioner is affirmed. Signed by Magistrate Judge John C. Gargiulo on 3/6/17. (RLW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
LINDA F. DAVIS
CIVIL NO. 1:15-cv-265-JCG
CAROLYN W. COLVIN,
Acting Commissioner of Social
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT (ECF NO. 14) AND AFFIRMING THE
DECISION OF THE COMMISSIONER
Pursuant to 42 U.S.C. ' 405(g), Plaintiff Linda F. Davis seeks judicial review
of a decision by the Commissioner of the Social Security Administration, denying
her claim for Disability Insurance Benefits (DIB) under Title II of the Social
Security Act, 42 U.S.C. § 401-433, and her claim for Supplemental Security Income
(SSI) under Title XVI of the Social Security Act, 42 U.S.C. ' 1381-1383f. Plaintiff
has filed a Motion for Summary Judgment (ECF No. 14) and Memorandum (ECF
No. 15), and the Commissioner has filed a Memorandum in Opposition (ECF No.
19). 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.
In June 2012, Plaintiff filed an application for DIB and SSI. Plaintiff alleged
disability beginning February 1, 2012, due to breast cancer and post-mastectomy
lymphedema syndrome of the left upper extremity. (ECF No. 9, at 188). Plaintiff
was 54 years old on the alleged onset date of February 1, 2012. She had a left
modified radical mastectomy in April 1999. (ECF No. 9, at 61). Plaintiff did not
allege mental impairment as a basis for disability when she filed her application.
She now alleges that she has a mental impairment of major depressive disorder
that was not properly evaluated by the ALJ. (ECF No. 15, at 13-20). The diagnosis
of major depressive disorder was made months after the date of Plaintiff’s
application by a nurse practitioner and a licensed counselor at Gulf Coast Mental
Health Center. (ECF No. 9, at 315, 321, 326).
Plaintiff completed high school with a GED and has taken vocational classes
in cosmetology but never practiced. Id. at 75. She has worked as a driver for a
rental car agency and as a food server. Id. at 63. Plaintiff’s last employment was in
2010 as a driver. Plaintiff was let go from that job in August 2010 due to an alleged
dispute with a coworker. Id. at 76. For purposes of her DIB claim, Plaintiff acquired
sufficient quarters of coverage to remain insured through December 31, 2014. Id. at
Following denial of her claim initially and on reconsideration, Plaintiff
requested a hearing before an ALJ. ALJ Wallace E. Weakley held a video hearing
on February 19, 2014. (ECF No. 9, at 57-64). Plaintiff appeared with counsel and
testified. A vocational expert (VE) also testified.
On March 24, 2014, the ALJ issued a decision concluding that Plaintiff was
not disabled from February 1, 2012, through the date of the decision. The ALJ
utilized the five-step sequential evaluation process to find Plaintiff not disabled. 20
C.F.R. § 404.1520(a) and 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 of February 1, 2012. Id. at 59. At step two, the ALJ found that Plaintiff had
severe impairments of “obesity, status post left mastectomy, limited use of left
upper extremity due to lymphedema.” Id. At step three, the ALJ concluded that
Plaintiff did not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1.” Id.
Next, the ALJ determined that Plaintiff retained the residual functional
capacity (RFC) “to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and
416.967(b) except no requirement for raising upper left extremity above shoulder
height.” Id. at 60. The ALJ concluded that Plaintiff’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however,
the claimant’s statements concerning the intensity, persistence and limiting effects
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).
of these symptoms are not entirely credible . . .” Id. at 61. Plaintiff maintains that the
ALJ’s credibility determination is not supported by substantial evidence. (ECF No.
15, at 21-23).
At step four, the ALJ noted Plaintiff’s past relevant work experience as a driver
for a rental car company and as a food server. Id. at 63. At step five, the ALJ relied
upon the VE’s testimony to find Plaintiff capable of performing her past work. Id. The
Appeals Council denied Plaintiff’s request for review, rendering the ALJ’s March 24,
2014, decision the final decision of the Commissioner.
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
The Court’s review is narrowly prescribed. 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.
The ALJ Was Not Required to Engage in the Special Technique
Plaintiff argues that she had a non-frivolous claim of mental impairment from
depression, and thus, the ALJ should have evaluated the severity of her mental
impairment using the special technique found at 20 C.F.R. §§ 404.1520a and
416.920a. (ECF No. 15, at 14).
The only mention of Plaintiff’s mental impairment in the ALJ’s decision
[A]lthough the claimant alleges depression and she attends
therapy sessions at Gulf Coast Mental Health Center,
neither a psychiatrist nor a psychologist has examined the
claimant or assigned a diagnosis of depression. The
claimant receives anti-depressive medication from a nurse
practitioner, which is not an acceptable medical source per
20 C.F.R. 404.1513(a)(e) and 416.913(a)(e).
(ECF No. 9, at 62).
Under the Social Security Act regulations, acceptable medical sources include
physicians, psychologists, optometrists, podiatrists, and speech pathologists. 20
C.F.R. §§ 404.1513(a) and 416.913(a). Only an acceptable medical source may (1)
establish the existence of a medically determinable impairment; (2) give a medical
opinion; and (3) be considered as a treating source whose medical opinions may be
entitled to controlling weight. See 20 C.F.R. §§ 404.1513(a) and 416.913(a);
Thibodeaux v. Astrue, 324 F. App’x 440, 445 (5th Cir. 2009) (citing Social Security
Ruling 06-03p, 71 Fed. Reg. 45593-03, 2006 WL 2329939 (August 9, 2006)). Nurse
practitioners and licensed counselors are not acceptable medical sources. 20 C.F.R.
§§ 404.1513(d) and 416.913(d). They are considered “other sources.” Id. Evidence from
“other sources” may be used to show the severity of an impairment and how it affects
the individual’s ability to function. Id. (“[W]e may also use evidence from other
sources to show the severity of your impairment(s) and how it affects your ability to
20 C.F.R. §§ 404.1520a and 416.920a set out a special technique for the ALJ to
use in evaluating the severity of a claimant’s mental impairments. Under these
regulations, the ALJ must first determine whether the claimant has a medically
determinable mental impairment. Evidence from an acceptable medical source is
required to establish a medically determinable impairment. 20 C.F.R. §§ 404.1513
and 416.913. No acceptable medical source diagnosed Plaintiff with severe major
depressive disorder. Plaintiff was diagnosed with this disorder by a nurse practitioner
and a licensed counselor. “Information from these ‘other sources’ cannot establish the
existence of a medically determinable impairment.” Social Security Ruling 06-03p.
Without an acceptable medical source to establish a medically determinable
mental impairment, the ALJ was not required to move to the next step of the special
technique and rate the degree of functional limitation resulting from the mental
impairment. 20 C.F.R. §§ 404.1520a and 416.920a. (“Under the special technique, we
must first . . . determine whether you have a medically determinable
impairment(s).”). Plaintiff maintains that several cases support her position that the
ALJ should have completed the technique. These cases however are not comparable
because acceptable medical sources diagnosed the mental impairments. See
Satterwhite v. Barnhart, 44 F. App’x 652, *2 (5th Cir. 2002) (medical doctor diagnosed
mental impairment); West v. Astrue, No. 1:10-cv-142-HSO-JMR, 2011 WL 3684069,
at *2 (S.D. Miss. July 22, 2011), report and recommendation adopted, 2011 WL
3683877 (S.D. Miss. Aug. 23, 2011) (psychologist diagnosed mental impairment);
Myers v. Astrue, No. 5:09-cv-121-DCB-RHW, 2010 WL 6397551, *5 (S.D. Miss. Nov.
18, 2010), report and recommendation adopted, 2011 WL 1213089 (S.D. Miss. Mar.
30, 2011) (medical doctor diagnosed mental impairment); Biles v. Astrue, No. 3:09-cv318-B(BF), 2010 WL 4688810, at *3 (N.D. Tex. Oct. 28, 2010), report and
recommendation adopted, 2010 WL 4705117 (N.D. Tex. Nov. 19, 2010) (psychologist
diagnosed mental impairment); Costanzo v. Astrue, No. G-07-418, 2009 U.S. Dist.
LEXIS, at *7-8 (S.D. Tex. Mar. 31, 2009) (medical doctor diagnosed mental
Plaintiff refers to a notation in the records of Gulf Coast Mental Health Center
that a “Dr. Maher” prescribed Celexa and Abilify, and Dr. Pande prescribed Ability
and Pristiq. (ECF No. 9, at 304, 321; ECF No. 15, at 16). The form where the notation
regarding Dr. Maher is written in the margins was signed on November 29, 2012, by
Nurse Practitioner Ladner. It is not signed by Dr. Maher. The margin note does not
reflect that Plaintiff was examined by Dr. Maher or that Dr. Maher diagnosed
Plaintiff with a mental impairment. The ALJ specifically inquired at the hearing
regarding whether an acceptable medical source diagnosed Plaintiff with a mental
impairment, and Plaintiff did not provide him with this information, instead referring
him to the medical records. (ECF No. 9, at 81-82). Plaintiff acknowledges that the
diagnosis of major depressive disorder was made by a nurse practitioner and a
licensed counselor. (ECF No. 9, at 315, 321, 326; ECF No. 15, at 22). See Thomas v.
Colvin, No. 2:14-cv-1099 AC, 2015 WL 1813011, *8 (E.D. Cal. Apr. 21, 2015)
(“Plaintiff identifies no part of the record showing that the nurse practitioner or the
social worker was directly supervised by a doctor, or worked closely with a doctor,
when the diagnoses were issue.”)
The regulations clearly outline who qualifies as an acceptable medical source,
and the ALJ was not obligated to rely on a diagnosis by a nurse practitioner and a
licensed counselor. See Porter v. Barnhart, 200 F. App’x 317, 319 (5th Cir. 2006)
(“[T]he ALJ was not required to rely on the chiropractor’s evaluation because a
chiropractor is not an acceptable medical source.”); Brown v. Astrue, No. 3:13-cv-1071DPJ-FKB, 2014 WL 1277885, *10 (S.D. Miss. Mar. 27, 2014) (“[T]he ALJ could, but
did not have to, consider [the nurse practitioner’s] opinion under 20 C.F.R. §
416.913(d)(1).”); Rush v. Astrue, No. 3:13-cv-915-CWR-FKB, 2014 WL 1153269, *8
(S.D. Miss. Mar. 21, 2014) (“Although a nurse practitioner falls under the category of
‘other sources’ in § 416.913(d), the ALJ is not obligated to consider evidence offered
by those sources.”). The ALJ’s decision reflects that he did consider the opinions of
the nurse practitioner and the licensed counselor but found them unsupported by an
acceptable medical source. Substantial evidence and clearly-worded regulations
support the ALJ’s decision not to credit the medical opinions of the nurse practitioner
and licensed counselor. See Brown, 2014 WL 1277885, at *2.
“[T]he claimant has the burden of proving his disability by establishing a
physical or mental impairment.” Jones v. Bowen, 829 F.2d 524, 526 (5th Cir. 1987).
“If the claimant does not provide sufficient evidence, the ALJ must make a decision
based on the available evidence.” Anderson v. Sullivan, 887 F.2d 630, 634 (5th Cir.
1989) (citing 20 C.F.R. § 404.1516). The decision to require a consultative
examination is discretionary, and is not required unless “the record establishes that
such an examination is necessary to enable the administrative law judge to make the
disability decision." Jones, 829 F.2d at 526. Plaintiff did not allege a mental
impairment in her application for benefits, nor is there any indication in the record
that she requested a consultative examination. The administrative record contained
sufficient evidence regarding Plaintiff’s mental condition to allow the ALJ to make
an informed decision. The ALJ was not required to further develop the record on this
The ALJ’s Credibility Determination is Supported by Substantial Evidence
The ALJ concluded that Plaintiff’s “allegations of debilitating symptoms and
limitations are not fully credible.” (ECF No. 9, at 62). He found that “the evidence in
the record does not support the claimant’s allegations of totally incapacitating
symptoms.” Id. at 63. Plaintiff submits that “[t]he reasons the ALJ provided for this
determination are not supported by substantial evidence as the ALJ discredited
Plaintiff for mostly irrelevant and illogical reasons.” (ECF No. 15, at 21).
The evaluation of a claimant’s subjective symptoms is a task particularly
within the province of the ALJ who had an opportunity to observe the claimant at
the hearing. Harrell, 862 F.2d at 480; Loya v. Heckler, 707 F.2d 211, 215 (5th Cir.
1983). “An ALJ must consider a claimant’s subjective symptoms as well as the
objective medical evidence, and those symptoms may support a finding of disability
even without support from any objective medical data. The ALJ is not required,
however, to give subjective evidence precedence over medical evidence . . .” Loya,
707 F.2d at 214.
To prove disability resulting from pain, a claimant must establish a medically
determinable impairment that is capable of producing disabling pain. 20 C.F.R. §§
404.1529(a) and 416.929(a); Ripley v. Chater, 67 F.3d 552, 556 (5th Cir. 1995). “The
ALJ must consider subjective evidence of pain, but it is within his discretion to
determine the pain’s disabling nature.” Wren v. Sullivan, 925 F.2d 123, 128 (5th
Cir. 1991) (citations omitted). “Such determinations are entitled to considerable
deference.” Id. “Disabling pain must be constant, unremitting, and wholly
unresponsive to therapeutic treatment.” Id. at 128-29 (citations omitted).
The ALJ was swayed by the fact that Plaintiff testified she stopped working
in August 2010, not because of disability, but because she was laid off. (ECF No. 9,
at 76). Plaintiff did not pursue employment after August 2010, despite her
allegation that she did not become disabled until February 1, 2012. Id. at 77.
Whether a claimant “ceased work for reasons other than impairment” is a factor
that may be considered in determining credibility. Villa v. Sullivan, 895 F.2d 1019,
1024 (5th Cir. 1990). The ALJ found inconsistencies between Plaintiff’s testimony
and other evidence that also supports his adverse credibility assessment. Plaintiff
testified that she “maybe” stopped driving in March 2012, but counseling session
notes from Gulf Coast Mental Health Center indicated that Plaintiff was providing
transportation to her neighbors in July 2013. (ECF No. 9, at 74, 337). An ALJ may
discount a claimant’s subjective complaints if there are inconsistencies between the
alleged impairments and the evidence as a whole. Vaughan v. Shalala, 58 F.3d 129,
131 (5th Cir. 1995).
The ALJ found that Plaintiff’s allegation of major depressive disorder was
undermined by the fact that Plaintiff was not diagnosed with this disorder by an
acceptable medical source. Id. at 62. Plaintiff argues that this fact should not
undermine Plaintiff’s credibility but has not supported this argument with
authority. Plaintiff did not allege that she was disabled due to major depressive
disorder or any other mental impairment when she filed her application in June
2012. When asked by the ALJ why she could not perform past relevant work,
Plaintiff testified that “constant use of the arm” would prevent her from doing past
work. (ECF No 9, at 87). Plaintiff did not mention her mental condition in response
to the ALJ’s question. That Plaintiff belatedly alleged mental impairment without
supporting evidence from an acceptable medical source is a reasonable credibility
Plaintiff maintains that “the ALJ did not consider the debilitating nature of
Plaintiff’s pain.” (ECF No. 15, at 22). The ALJ’s decision however shows that the
ALJ considered Plaintiff’s complaints of pain along with her activities and the
medical evidence. The ALJ noted that Plaintiff testified that her “average pain is
eight but she takes medicine before it gets that far.” (ECF No. 9, at 61). Dr. Pande’s
treatment records indicate Plaintiff reported a pain level of six on February 14,
2012, and a four on December 4, 2013. Id. at 264, 339. Dr. Pande regularly
prescribed pain medication to manage Plaintiff’s pain, indicating that the pain was
responsive to treatment. The fact that Plaintiff’s pain was responsive to pain
medication is a proper consideration. James v. Bowen, 793 F.2d 702, 706 (5th Cir.
1986). Pain controlled by medication is not disabling. Id.
The ALJ noted a physical therapy record of January 26, 2012, where Plaintiff
reported “feel[ing] great today.” (ECF No. 9, at 61, 245). He cited an examination by
Dr. Pande in December 21, 2012, that indicated normal strength in Plaintiff’s upper
extremities. (ECF No. 9, at 61, 279). Dr. Pande also found Plaintiff’s upper
extremity strength normal on November 22, 2011, February 14, 2012, and August
14, 2012. Id. at 265, 273, 290. The ALJ noted the “normal” examinations of Plaintiff
by Dr. Pande, but also credited Dr. Pande’s opinion that Plaintiff’s physical
impairment caused pain, swelling, and difficulty with movement in the upper left
extremity. (ECF No. 9, at 61, 277). For this reason, the ALJ placed restrictions in
the RFC that Plaintiff not be required to raise her left upper extremity above
shoulder height. Id. at 60. Clearly, the ALJ considered Plaintiff’s complaints of pain.
The ALJ compared Plaintiff’s statements to the medical evidence and
properly performed his function as the trier of fact. The evidence the ALJ cited to
support his 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.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiff’s
Motion for Summary Judgment (ECF No. 14) is DENIED and the decision of the
SO ORDERED, this the 6th day of March, 2017.
/s/ John C. Gargiulo
JOHN C. GARGIULO
UNITED STATES MAGISTRATE JUDGE
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