Wilkinson v. Colvin
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS for 13 Report and Recommendations. Ordered that the decision of the Commissioner is AFFIRMED. See order for details. Signed by District Judge Halil S. Ozerden on 1/5/17. (JCH)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CAROLYN W. COLVIN
CIVIL NO.: 1:15cv418-HSO-MTP
MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF
CECELIA WILKINSON’S OBJECTION , ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION , AND AFFIRMING THE
DECISION OF THE COMMISSIONER
BEFORE THE COURT is the Objection  filed by Plaintiff Cecelia
Wilkinson (“Plaintiff”) to the Report and Recommendation  of United States
Magistrate Judge Michael T. Parker. 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, and that the decision of Defendant Carolyn W.
Colvin, Acting Commissioner of Social Security (“Defendant” or “Commissioner”),
denying disability benefits should be affirmed.
Plaintiff was born in 1964, has a high school education, and has relevant
work experience as a slot machine technician, casino security personnel, and
restaurant cook. Pl.’s Br.  at 2. She has a history of back pain and lumbar disc
displacement. Id. at 3. Plaintiff alleges disability due to a dehydrated spinal disc at
L1, bulging discs at L3 and L5, and arthritis at L5-S1. Id. at 2.
On April 16, 2013, Plaintiff filed an application for Social Security disability
insurance benefits, claiming that her disability began on September 12, 2012.
Report and Recommendation  at 1. The Social Security Administration initially
denied Plaintiff’s application on June 10, 2013, and thereafter upheld the decision
upon a request for reconsideration on June 17, 2013. R.  at 76-77. Plaintiff
requested a hearing before an Administrative Law Judge (“ALJ”) to review the
decision, and on July 10, 2014, Plaintiff and a vocational expert testified at a video
hearing before the ALJ. Id. at 38-68. The ALJ issued a decision on September 26,
2014, concluding from the entire record that Plaintiff has the residual functional
capacity to perform light work and is not disabled. Id. at 22-33.
Plaintiff sought review of the ALJ’s decision before the Appeals Council,
which denied the request for review on November 4, 2015. Id. at 4-7. Plaintiff filed
this civil action on December 18, 2015, seeking a reversal of the decision to deny
disability benefits, an order granting disability benefits commencing on September
12, 2012, and an award of attorneys’ fees. Compl.  at 3.
Following briefing by the parties, the Magistrate Judge issued a Report and
Recommendation  that the decision of the Commissioner should be affirmed.
Plaintiff filed an Objection , and Defendant filed a Response  urging the
Court to adopt the Magistrate Judge’s Report and Recommendation  and affirm
the denial of disability benefits.
Standard of Review
Because Plaintiff has filed an Objection  to the Magistrate Judge’s Report
and Recommendation , this 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, the ALJ issued an adverse decision
that Plaintiff was not disabled within the meaning of the Social Security Act. R.
 at 22-33. First, the ALJ found that Plaintiff had not engaged in substantial
gainful activity after the alleged onset date of September 12, 2012. Id. at 24.
Although Plaintiff participated in a work experience program through the United
States Department of Veterans Affairs and worked briefly for the American Legion
after the alleged onset of her disability, the short duration and modest earnings of
both positions did not rise to the level of substantial gainful activity. Id. However,
the ALJ noted that this work activity suggested that Plaintiff’s impairments may
not be as debilitating as alleged. Id. at 25; see 20 C.F.R. § 404.1571 (“Even if the
work [claimants] have done was not substantial gainful activity, it may show that
[claimants] are able to do more work than [claimants] actually did.”).
Second, the ALJ determined that Plaintiff had two severe physical
impairments, disorders of the neck and back as well as osteoporosis, that
significantly limited the employment opportunities available to her. Id. Plaintiff’s
disorders of the neck and back included spinal stenosis, lumbar disc displacement,
and degeneration of the lumbar or lumbosacral intervertebral disc. Id. Third, the
ALJ found that Plaintiff’s 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 27. The
ALJ considered listing 1.04, which concerns disorders of the spine, and concluded
that Plaintiff did not have nerve root compression, spinal arachnoiditis, or an
inability to ambulate effectively as required in order to meet the listing. Id.
Fourth, the ALJ determined that, while Plaintiff was unable to return to past
relevant work, Plaintiff had the residual functional capacity to lift, carry, push, or
pull twenty pounds occasionally and ten pounds frequently; to stand or walk six
hours in an eight-hour workday; and to sit for six hours in an eight-hour workday.
Id. at 28, 31. The ALJ stated that he “gave great weight” to the opinions of two
State agency medical consultants that were consistent with Plaintiff’s reported
activities of daily living and with the medical evidence and opinions of Plaintiff’s
two treating physicians. Id. at 31. The ALJ also gave weight to the opinion of
Plaintiff’s physician that she was physically able to perform her job. Id. at 31, 231.
In determining Plaintiff’s residual functional capacity, the ALJ found that
Plaintiff’s medically determinable impairments could reasonably be expected to
cause her alleged symptoms. Id. at 28. However, the ALJ noted that it was
necessary to make a finding regarding Plaintiff’s credibility “whenever statements
about the intensity, persistence, or functionally limiting effects of pain or other
symptoms are not substantiated by objective medical evidence.” Id.
The ALJ found that Plaintiff’s claims regarding her symptoms were
inconsistent with the objective medical evidence as well as with statements Plaintiff
made to her treating physician and to an outpatient clinic in 2013 and 2014. Id. at
29. Additionally, Plaintiff worked for three months in 2013 and consistently
indicated that she was seeking employment throughout the period she was
allegedly disabled. Id. at 30. Plaintiff continued to smoke despite her physician’s
warnings that smoking could decrease the chance of a good outcome after her back
surgery. Id. Plaintiff frequently engaged in a variety of activities of daily living,
including fishing, gardening, shopping, and throwing darts, which suggested that
the severity of her back pain was not as great as claimed. Id. The ALJ concluded
that Plaintiff’s claims regarding the intensity, persistence, and limitations resulting
from her symptoms were “not entirely credible.” Id. at 29-30.
Finally, the ALJ determined that, given her residual functional capacity, age,
education, and work experience, Plaintiff was able to perform light, unskilled
positions such as bench assembler, rental clerk, or counter attendant that exist in
significant numbers in the national economy. Id. at 33. Accordingly, the ALJ
concluded that Plaintiff was not disabled within the meaning of the Social Security
Act from the alleged onset date of September 12, 2012, through September 26, 2014,
the date of the decision. Id.
The Magistrate Judge’s Report and Recommendation 
On October 25, 2016, the Magistrate Judge entered his Report and
Recommendation  that the Commissioner’s decision to deny Plaintiff disability
benefits should be affirmed because it was supported by substantial evidence and
applied the correct legal standards. The Magistrate Judge found that the ALJ
provided a thorough discussion of the substantial evidence supporting his
determination that Plaintiff is not disabled, including the medical records from
Plaintiff’s treating physicians. Report and Recommendation  at 8-9. The
Magistrate Judge noted that Plaintiff failed to point to any medical opinion in the
record expressly stating that Plaintiff’s impairments rendered her unable to engage
in substantial gainful activity. Id. at 10.
The Magistrate Judge also determined that the ALJ did not violate 20 C.F.R.
§ 404.1529(b) by refraining from exercising his discretion to order a consultative
examination to establish Plaintiff’s functional limitations and to measure Plaintiff’s
capacity after back surgery. Id. at 11. Because the record contained sufficient
evidence for the ALJ to reach a disability determination, additional consultative
examinations were not necessary to enable the ALJ to make a decision. Id.
Plaintiff’s Objection 
Plaintiff objects to the Magistrate Judge’s conclusion that the ALJ’s
determination that Plaintiff is not disabled was supported by substantial evidence.
Obj.  at 1. Plaintiff specifically objects to the ALJ’s reliance on her treating
physician’s opinion in April 2013 that she was physically able to perform her job.
Obj.  at 2-3; R.  at 31. Plaintiff contends that the ALJ failed to consider the
evidence showing that Plaintiff continued to complain of severe pain in 2013 and
2014, following the lumbar fusion surgery. Obj.  at 1-2. Plaintiff argues that, in
light of her persistent symptoms, her treating physician’s opinion that she could
work was “entitled to very little weight.” Id. at 3.
The record reveals that the ALJ did not rely solely on the April 2013 opinion
of Plaintiff’s physician to determine Plaintiff’s residual functional capacity. The
ALJ considered the entire record, including the medical opinions of two State
agency consultants, Plaintiff’s medical records, the opinions of Plaintiff’s two
treating physicians, Plaintiff’s work history, and Plaintiff’s own testimony
concerning her symptoms and activities of daily living. R.  at 28-31. The Court
cannot conclude that the ALJ’s determination was unsupported by substantial
evidence; therefore, Plaintiff’s Objection  will be overruled, and the Magistrate
Judge’s Report and Recommendation  will be adopted as the opinion of this
Court. Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000).
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. 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. United States v. Wilson, 864 F.2d
1219, 1221 (5th Cir. 1989).
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Objection
 filed by Plaintiff Cecelia Wilkinson is OVERRULED, and the Report and
Recommendation  of Magistrate Judge Michael T. Parker is adopted in its
entirety as the finding of this Court.
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 5th day of January, 2017.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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