Tackett v. Colvin
OPINION AND ORDER denying 9 Motion for Judgment on the Pleadings. Ordered that the Commissioner's final decision is AFFIRMED. This action is dismissed with prejudice. Signed by Magistrate Judge Michael T. Parker on 2/16/17. (JCH)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 1:16-cv-181-MTP
CAROLYN W. COLVIN
OPINION AND ORDER
Plaintiff Renaee Tackett brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial
review of a final decision of the Commissioner of Social Security Administration denying her
claim for disability insurance benefits. The parties have briefed the issues in this matter in
accordance with the Court’s Scheduling Order , and the matter is now ripe for decision. After
reviewing the parties’ submissions, the record, and the applicable law, the Court finds that the
Plaintiff’s Motion for Judgment on the Pleadings  should be DENIED, the Commissioner’s
final decision should be AFFIRMED, and this action should be DISMISSED.
On September 10, 2013, Plaintiff applied for disability insurance benefits, alleging
disability beginning on July 18, 2013, due to sciatica, back pain, and hypertension.
(Administrative Record  at 197-200; 229). Plaintiff’s claim was denied initially and upon
reconsideration. ( at 133-38; 147-53). Thereafter, she requested a hearing before an
Administrative Law Judge (“ALJ”), and on March 19, 2015, an ALJ held a hearing, during
which Plaintiff and a vocational expert testified. ( at 79-106). On June 30, 2015, the ALJ
issued a decision finding that Plaintiff was not disabled. ( at 17-27). Plaintiff appealed the
ALJ’s decision to the Appeals Council, and on March 31, 2016, it denied Plaintiff’s request for
review, rendering the ALJ’s decision the final decision of the Commissioner. ( at 5-9).
Plaintiff now seeks judicial review in this Court under 42 U.S.C. § 405(g).
SUMMARY OF THE FACTUAL AND MEDICAL HISTORY
Plaintiff was fifty-two years old at the time of her alleged disability onset date. She has a
ninth-grade education and has past work experience as a fast food restaurant manager, caretaker,
poultry production worker, and janitor. ( at 197; 230).
According to Plaintiff, she began to experience lower back pain in July, 2013. Plaintiff
alleges that in August, 2013, she went to the emergency room, where physicians diagnosed her
with sciatica and advised her to see a neurosurgeon. On October 15, 2013, Plaintiff saw a
neurosurgeon, Dr. Terry Smith. Dr. Smith prescribed her a pain medication and noted that it was
“[h]ard to know what to do without MRI.” ( at 330-31). An MRI taken on October 28, 2013,
revealed (1) moderate spinal canal stenosis1 involving T12/L1 and L2/L3; (2) mild spinal canal
stenosis involving L1/L2, L4/L5 and L5/S1; and (3) multilevel mild to moderate neural
foraminal stenosis. ( at 318-19). On November 5, 2013, Plaintiff again saw Dr. Smith who
noted that he reviewed the MRI films with Plaintiff and offered her the options of surgery,
physical therapy, or injections. At that time, Plaintiff opted for physical therapy. ( at 327-28).
On November 8, 2013, the Office of Disability Determination Services sent Dr. Smith a
disability report form, to which Dr. Smith replied that Plaintiff was not disabled and “had been
offered surgery that has 90% success rate and refused.” ( at 323-24). On November 12, 2013,
Spinal stenosis is narrowing of the vertebral canal, nerve root canal, or intervertebral foramina
of the lumbar spine caused by encroachment of bone upon the space. Dorland’s Illustrated
Medical Dictionary 1698 (29th ed. 2000).
a state agency medical consultant, Dr. William Hand, determined that Plaintiff had the capacity
for light work. ( at 133-38).2
On December 24, 2013, Plaintiff saw Dr. Smith, complaining that her pain was getting
worse. Dr. Smith noted that physical therapy had not occurred. Plaintiff and Dr. Smith
discussed her stenosis, and she elected to have surgery. ( at 324-25). The Office of Disability
Determination Services again sent Dr. Smith a disability report form on January 21, 2014, and
Dr. Smith again replied that he did not find Plaintiff to be disabled. He referenced the ninetypercent success rate of her scheduled surgery and stated that he expected her to be able to return
to work within six to eight weeks of the surgery. ( at 336).
On January 30, 2014, Plaintiff’s surgery had to be postponed until her high blood
pressure was under control. ( at 343). On May 29, 2014, Dr. Smith performed surgery on
Plaintiff. ( at 352). According to Plaintiff, she saw Dr. Smith for follow-up visits in June and
July of 2014 and Dr. Smith released her to return to work with certain restrictions, including
lifting no more than thirty pounds and wearing a back brace. ( at 300).
Plaintiff returned to work as a manager of a fast food restaurant on August 2, 2014, but
Plaintiff allegedly began experiencing an exacerbation of her back pain. On October 19, 2014,
Plaintiff was allegedly terminated after she missed work on multiple occasions. ( at 300-01).
On November 13, 2014, Plaintiff went to the emergency room, where she was diagnosed with
back pain and degenerative joint disease of lumbar spine. ( at 301, 346). On November 19,
2014, Dr. Smith instructed Plaintiff to undergo physical therapy. ( at 302). Plaintiff went to
On March 13, 2014, another state agency medical consultant, Dr. Robert Culpepper, agreed
with Dr. Hand’s findings. ( at 147-51).
three physical therapy sessions in December, 2014, but had to cancel additional appointments
because she had “no money for gas, no ride.” ( at 302; 408-18).
Plaintiff returned to Dr. Smith’s office on February 10, 2015, complaining that the pain
she was experiencing differed from what she felt prior to the surgery. Dr. Smith instructed
Plaintiff to continue physical therapy and recommended an MRI to determine if there had been
any change in her lumbar spine. ( at 396-97). Plaintiff went to six physical therapy sessions
from February 24, 2015, to March 19, 2015. ( at 419-436).
An additional MRI was taken on April 9, 2015, and five days later, Plaintiff saw Dr.
Smith, who noted the following:
MRI of the lumbar spine was reviewed with the patient and looks good; she has the
usual post-op scar, nothing causing nerve compression. Not much more to do at
this point. Her thoughts today were focused on getting a copy of her medical
records to send to the lawyer helping her get disability.
( at 440-44).3
BURDEN OF PROOF
In Harrell v. Bowen, the Fifth Circuit detailed the shifting burden of proof that applies to
An individual applying for disability and SSI benefits bears the initial burden of proving
that he is disabled for purposes of the Social Security Act. Once the claimant satisfies his
initial burden, the [Commissioner] then bears the burden of establishing that the claimant
is capable of performing substantial gainful activity and therefore, not disabled. In
determining whether or not a claimant is capable of performing substantial gainful activity,
the [Commissioner] utilizes a five-step sequential procedure set forth in 20 C.F.R. §
1. An individual who is working and engaging in substantial gainful activity
will not be found disabled regardless of the medical findings.
After the ALJ rendered her opinion, Plaintiff received a letter dated August 3, 2015, from a
district manager of the Mississippi Department of Rehabilitation Services stating that in her
opinion “Ms. Tackett is unable to return to work due to limitations with ambulation, standing,
bending, lifting and severe pain.” ( at 456).
2. An individual who does not have a ‘severe impairment’ will not be found
to be disabled.
3. An individual who meets or equals a listed impairment in Appendix 1 of
the regulations will be considered disabled without consideration of
4. If an individual is capable of performing the work he has done in the
past, a finding of ‘not disabled’ must be made.
5. If an individual’s impairment precludes him from performing his past
work, other factors including age, education, past work experience, and
residual functional capacity must be considered to determine if other work
can be performed.
862 F.2d 471, 475 (5th Cir. 1988) (citations and footnotes omitted). A finding that a claimant “is
disabled or not disabled at any point in the five-step process is conclusive and terminates the . . .
ADMINISTRATIVE LAW JUDGE’S ANALYSIS
The ALJ held a hearing in this matter and, upon applying the five-step sequential analysis
described above, rendered a decision that Plaintiff was not disabled. At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful activity since July 18, 2013, her alleged
disability onset date.4 At step two, the ALJ found that Plaintiff had the following severe
impairments: degenerative disc disease, hypertension, and obesity. At step three, the ALJ found
that these impairments did not meet or medically equal the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. ( at 20-21).
The ALJ noted that Plaintiff worked from August 2, 2014, to October 19, 2014, earning $1,942.
This activity did not rise to the level of substantial gainful employment as Plaintiff’s earnings
The ALJ then examined the record and determined that Plaintiff had the residual
functional capacity (“RFC”)5 to “perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except she can occasionally climb, stoop, kneel, crouch and crawl; and should have
no exposure to unprotected heights or hazardous machinery.” The ALJ went on to determine at
step four that Plaintiff could not perform any past relevant work, but found at step five that jobs
existed in significant numbers in the national economy that she could perform. Accordingly, the
ALJ found that Plaintiff was not disabled. ( at 22-27).
STANDARD OF REVIEW
This Court’s review of the Commissioner’s decision is limited to determining whether
there is substantial evidence to support the Commissioner’s findings and whether the correct
legal standards were applied in evaluating the evidence. Hollis v. Bowen, 837 F.2d 1378, 1382
(5th Cir. 1988). 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.”
Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983). To be substantial, the evidence “must do
more than create a suspicion of the existence of the fact to be established.” Id. (citations
However, “[a] finding of no substantial evidence is appropriate only if no credible
evidentiary choices or medical findings support the decision.” Boyd v. Apfel, 239 F.3d 698, 704
(5th Cir. 2001) (internal citations and quotations omitted). Conflicts in the evidence are for the
Commissioner, not the courts, to resolve. Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
A court may not re-weigh the evidence, try the issues de novo, or substitute its judgment for the
“Residual Functional Capacity” is defined as the most an individual can still do despite the
physical and/or mental limitations that affect what the individual can do in a work setting. 20
Commissioner’s, “even if the evidence preponderates against” the Commissioner’s decision.
Harrell, 862 F.2d at 475. If the decision is supported by substantial evidence, it is conclusive
and must be affirmed. Selders, 914 F.2d at 617. Moreover, “‘[p]rocedural perfection in
administrative proceedings is not required’ as long as ‘the substantial rights of a party have not
been affected.’” Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007) (quoting Mays v. Bowen,
837 F.2d 1362, 1364 (5th Cir.1988)).
Plaintiff raises the following issues for review:
(1) Whether or not the ALJ inappropriately gave “partial weight” to Dr. Terry
Smith’s non-medical opinions that Claimant was not disabled, when bald
assertions of that type should not be given any special significance.
(2) Whether or not the ALJ should have considered Dr. Smith’s pre-surgery bald
assertions regarding disability, made in November of 2013 and January of 2014,
which had little, if any, bearing on Claimant’s physical condition after the
5/29/14 surgery and at the time of the 3/19/15 hearing.
(3) Whether the ALJ inappropriately considered Dr. Terry Smith’s records, which
were clearly incomplete and self-contradictory as opposed to Encore Physical
Therapy records showing Claimant has difficulty walking, an antalgic gait and
is disabled from working.
(4) Whether the ALJ failed to consider statements from Social Security physicians
that the Claimant’s medically determinable impairments could be reasonably
expected to produce her pain or other symptoms and that her statements about
the intensity, persistence, and functionally limiting effects of her symptoms
were substantiated by the objective medical evidence alone.
(5) Whether the ALJ should have placed limitations on the Claimant’s ability to sit,
stand or walk, in assessing Claimant’s Residual Functional Capacity.
(6) Whether the ALJ should have used the Medical-Vocational Guidelines to find
Claimant disabled, since, at the time he rendered his decision, Claimant was
one week from reaching the age of 55 and would have been clearly disabled
based on the Medical-Vocational Guidelines.
(7) Whether the Appeals Council should have remanded the case to the ALJ to
obtain complete records from Dr. Terry Smith, and consider these, along with
the new evidence submitted to the Council show herniated disc at other levels
of the Claimant’s spine and a finding by MS Dept. of Rehabilitation Services,
that the Claimant is disabled.
The Weight Given to the Opinions of the Medical Professionals
In the first three issues raised by Plaintiff, she argues that the ALJ failed to properly
assess the opinions of the medical professionals in this case. According to Plaintiff, the ALJ
erred when she gave “partial weight” to Dr. Terry Smith’s January 28, 2014, opinion that
Plaintiff was not disabled because she was scheduled to have surgery with a success rate of
ninety percent. Plaintiff argues that Dr. Smith’s opinion was conclusory and that the opinion,
along with the similar opinion rendered on November 11, 2013, had little bearing on Plaintiff’s
physical condition after her May 29, 2014, surgery. Plaintiff also argues that Dr. Smith’s records
were incomplete and inconsistent and were contradicted by Plaintiff’s physical therapy records.
The weight to be given a physician’s statement is dependent upon the extent it is
supported by specific clinical findings. Elzy v. Railroad Retirement Board, 782 F. 2d 1223, 1225
(5th Cir. 1986); Jones v. Heckler, 702 F.2d 616, 621 (5th Cir. 1983). An acceptable medical
opinion as to disability must contain more than a mere conclusory statement. It must be
supported by clinical or laboratory findings. Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir.
1981). A treating physician’s opinion regarding the nature and severity of a patient’s condition
is normally given controlling weight, if it is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial evidence. Newton
v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000). The ALJ, however, has the sole responsibility for
determining a claimant’s disability status and is free to reject the opinion of any physician when
the evidence supports a contrary conclusion. Id.
The record demonstrates that the ALJ did not solely base her decision on the opinions
rendered by Dr. Smith on November 11, 2013, and January 28, 2014. The ALJ specifically
found as follows:
On January 28, 2014, Dr. Smith stated he did not support disability because the
claimant was having a surgery with 90 percent success rate, and he expected her to
return to work six to eight weeks post-operatively. Partial weight is given to this
opinion, to the extent it is consistent with the residual functional capacity based on
his normal examination finding after surgery and the results of the 2015 MRI
showing no nerve compression.
( at 25). The ALJ’s opinion shows that she carefully considered the medical records from
Plaintiff’s treating sources pre- and post-operation.
As the ALJ pointed out, Plaintiff was discharged to return to work three months after her
surgery and an MRI taken on April 9, 2015, revealed no new problems. Dr. Smith did not
indicate that Plaintiff had any restrictions during her April 14, 2015, visit. In fact, Dr. Smith said
her lumbar spine “looks good.” ( at 24; 440-44). Additionally, Plaintiff’s primary care
physician, Dr. Weymoth Crowell, did not suggest that Plaintiff needed further intervention or
specialized treatment during Plaintiff’s March 5, 2015, visit. ( at 372-76).
Plaintiff also argues that Dr. Smith’s records were internally inconsistent and
contradicted by Plaintiff’s physical therapy records. The ALJ “is entitled to determine the
credibility of medical experts as well as lay witnesses and weigh their opinions accordingly.”
Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985); see also 20 C.F.R. § 404.1527(c)(2) (“if any
of the evidence in your record, including any medical opinions(s), is inconsistent with other
evidence or is internally inconsistent, we will weigh all the other evidence and see whether we
can decide whether you are disabled based on the evidence we have.”). The ALJ pointed out that
the physical therapy notes reflected a slow antalgic gait with decreased stride length, while Dr.
Smith noted a normal gait in his findings. ( at 24). It should also be pointed out that
Plaintiff’s physical therapy notes indicated that Plaintiff’s “[o]verall rehabilitation potential is
fair.” ( at 410-20). Although certain portions of the medical records provide support for
Plaintiff’s assertions, other portions of the records serve as credible evidence supporting the
ALJ’s determination. This Court does not resolve conflicts in the evidence; that is left to the
discretion of the Commissioner, and Plaintiff has failed to show that no credible evidence
choices or medical findings support the ALJ’s decision. Selders, 914 F.2d at 617; Boyd, 239 F.3d
Additionally, Plaintiff contends that the ALJ failed to obtain additional medical records
from her treating physician, and in doing so, failed to fully develop the record. Specifically,
Plaintiff argues that Dr. Smith did not provide records from five office visits in 2014, including
visits on March 22, May 7, June 20, July 18, and November 19. While an ALJ is not responsible
for securing evidence of disability for a claimant, the ALJ has a duty to fully and fairly develop
the facts relative to a disability claim. Kane v. Heckler, 731 F.2d 1216, 1219-20 (5th Cir. 1984).
Nevertheless, the ALJ’s failure to adequately develop the record does not automatically warrant
reversal. Id. The claimant must still demonstrate that she was prejudiced thereby. Id. “To
establish prejudice, a claimant must show that [s]he could and would have adduced evidence that
might have altered the result.” Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996) (internal quotes
Assuming, for purposes of discussion, that the ALJ did not fully develop the record,
Plaintiff has not demonstrated resulting prejudice. Plaintiff has not demonstrated that the
missing medical records would have materially affected the ALJ’s decision, and it is difficult to
perceive how these medical records would have impacted the ALJ’s decision. The ALJ
considered medical records from before March 22, 2014, and after November 19, 2014. As
noted, Dr. Smith reviewed an MRI taken on April 9, 2015, and determined that Plaintiff’s lumbar
spine “looks good.” ( at 440-44). Plaintiff has the burden to demonstrate to the Court that no
substantial evidence supports the ALJ’s decision, and Plaintiff has not met that burden.
The Credibility Determination
Plaintiff argues that the ALJ failed to properly consider Plaintiff’s symptoms and her
subjective complaints regarding her symptoms. An ALJ should consider whether there is a
medically determinable impairment that could reasonably be expected to produce the pain or
other symptoms described by the claimant. 20 C.F.R. §§ 404.1529, 416.929; SSR 96-7p. Once
an impairment is found, the ALJ evaluates the intensity, persistence, and limiting effects of the
symptoms on the claimant’s ability to do basic work activities. Id. An ALJ should consider a
claimant’s subjective complaint, but a claimant’s own statements regarding her pain and
symptoms are not determinative of disability status. 20 C.F.R. § 404.1529. “The evaluation of a
claimant’s subjective symptoms is a task particularly within the province of the ALJ, who has
had an opportunity to observe whether the person seems to be disabled.” Loya v. Heckler, 707
F.2d 211, 215 (5th Cir. 1983).
The ALJ was required to make affirmative findings regarding the Plaintiff’s subjective
complaints. Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994). The ALJ stated: “After careful
consideration of the evidence, the undersigned finds that the claimant’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however, her
statements concerning the intensity, persistence, and limiting effects of these symptoms were not
entirely credible for the reasons explained in this decision.” ( at 24).
Plaintiff argues that this opinion is contradicted by the opinions of the state agency
medical consultants, Dr. Hand and Dr. Culpepper who answered “yes” to the following question:
“Are the individual’s statements about the intensity, persistence, and functionally limiting effects
of the symptoms substantiated by the objective medical evidence alone?” ( at 141; 151). It
should be noted, however, that both Dr. Hand and Dr. Culpepper found that Plaintiff had the
capacity for light work.
The record indicates that the ALJ considered the medical evidence and detailed her
reasons for partially discounting Plaintiff’s allegations regarding her limitations. The ALJ
The claimant developed worsening low back pain while working at Burger King.
She filed a Worker’s Compensation claim, which resulted in her treatment by Dr.
Smith. Lumbar MRI demonstrated mild to moderate stenosis secondary to disc
bulges. The claimant underwent surgery in late May 2014, and was discharged to
return to work three months later. Exhibit 17E. The lifting limitations set by Dr.
Smith would have allowed for the performance of light work. He did not indicate
any restrictions at the April 2015 visit, and the new MRI showed no new problems.
While she alleged total disability, she would not be precluded from performance of
all work by her alleged impairments.
The claimant acknowledged her condition initially improved after surgery. There
were no objective findings afterward of recurrent herniation or any new back injury
or condition. She received physical therapy and training in home exercises.
Although the physical therapy notes reflected slow antalgic gait with decreased
stride length, Exhibit 9F, Dr. Smith noted normal gait in his findings, Exhibit 8F.
When seen by Dr. Smith in February 2015, the claimant reported she had pain but
which was different than before surgery. Exhibit 8F. There is no persuasive
corroborating evidence for the duration, frequency or intensity of pain and other
limitations she alleged. Her primary care physician, Dr. Crowell, prescribed pain
medication but there were no suggestions from him that she needed further
intervention or specialized treatment. Exhibit 7F.
( at 24-25).
The ALJ’s findings regarding Plaintiff’s symptoms is supported by substantial evidence.
“Moreover, a factfinder’s evaluation of the credibility of subjective complaints is entitled to
judicial deference if supported by substantial record evidence.” Villa v. Sullivan, 895 F.2d 1019,
1024 (5th Cir. 1990). The ALJ found that the medical evidence was more persuasive than
Plaintiff’s subjective complaints—precisely the kind of determination an ALJ is best positioned
Plaintiff’s Residual Functional Capacity
As previously mentioned, the ALJ determined that Plaintiff had the RFC to “perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she can occasionally climb,
stoop, kneel, crouch and crawl; and should have no exposure to unprotected heights or hazardous
machinery.” Plaintiff argues that the ALJ erred by not placing any limitations on Plaintiff’s
ability to sit, stand, or walk.
The responsibility for determining a claimant’s RFC is reserved to the Commissioner and
at the hearing level, that assessment is entrusted to the ALJ. 20 C.F.R §§ 404.1527(e)(2),
404.1546(c). An ALJ has a duty to develop the record before her and must make an RFC
assessment that is supported by substantial evidence. The claimant, however, bears the burden
of demonstrating that the ALJ’s determination is not supported by substantial evidence. Audler v.
Astrue, 501 F.3d 446, 448 (5th Cir. 2007). According to the ALJ, she considered all symptoms
and the extent to which these symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence, based on the requirements of 20 C.F.R. §§
404.1529, 416.929 and SSRs 96-4p; 96-7p. The ALJ also considered opinion evidence in
accordance with the requirements of 20 C.F.R. §§ 404.1527, 416.927 and SSRs 96-2p, 96-6p,
The ALJ considered Plaintiff’s testimony that she “could walk for 15 to 20 minutes and
then would have to sit down,” and that, when sitting, she “squirmed around and adjusted from
side to side.” The ALJ also noted that she rode a bicycle and performed leg stretches during
physical therapy. ( at 24). The ALJ considered that after Plaintiff’s surgery, Dr. Smith
released her to return to work with limitation of “lifting no more than thirty pounds and wearing
a back brace.” ( at 22-23). The ALJ pointed out that in April, 2015, Dr. Smith noted that
Plaintiff had a normal neurological exam, motor strength of five out of five, intact reflexes and
sensation, and a normal gait. The ALJ again noted that Dr. Smith reviewed the MRI taken that
month and stated that it “looks good.” ( at 23).
Plaintiff points to evidence that suggests that she has difficulty sitting, standing, and
walking, such as her statement in physical therapy that she “has had difficulty with any activity
since she is unable to sit, stand or walk for any length of time.” ( at 417). Indeed, certain
records support Plaintiff’s assertion that she has difficulty sitting, standing, and walking, but
other records serve as credible evidence supporting the ALJ’s determination that Plaintiff does
not have such limitations. Again, this Court does not resolve conflicts in the evidence. Plaintiff
has the burden to demonstrate to the Court that no substantial evidence supports the ALJ’s
decision. Plaintiff has not met that burden.
Step Five of the Sequential Analysis
At step five of the sequential analysis, the ALJ noted that claimant was born on July 7,
1961, and was fifty-two years old on the alleged disability onset date, which is defined as
“closely approaching advanced age.” The ALJ also noted that Plaintiff has a ninth grade
education, is able to communicate in English, and has no transferable work skills. Given these
facts, the ALJ determined that “[i]f the claimant had the residual functional capacity to perform
the full range of light work, a finding of ‘not disabled’ would be directed by Medical-Vocational
Rule 202.11.” ( at 25-26). The ALJ further explained that Plaintiff’s ability to perform all or
substantially all of the requirements of light work has been impeded by additional limitations,6
and in order to determine the extent to which these limitations erode the unskilled light
occupational base, the ALJ would need to consult the VE. Thus, the ALJ asked the VE “whether
jobs exist in the national economy for an individual with the claimant’s age, education, work
experience, and residual functional capacity.” The VE testified that such an individual would be
able to perform the requirements of jobs such as mail clerk, cafeteria attendant, and cashier. (
Plaintiff points out that her birthday is July 7, 1961,7 and asserts that the ALJ’s decision
was entered on June 30, 2015, one week before her fifty-fifth birthday, which is considered
“advanced age.” Plaintiff further points out that if she had been “advanced age,” she would have
been considered disabled based on the Medical-Vocational Guidelines. Plaintiff argues that the
ALJ failed to use the Medical-Vocational Guideline as a framework for her decision and failed to
consider whether to use the older age category in assessing Plaintiff’s disability.
The regulations provide that,
We will not apply the age categories mechanically in a borderline situation. If you
are within a few days to a few months of reaching an older age category, and using
the older age category would result in a determination or decision that you are
disabled, we will consider whether to use the older age category after evaluating
the overall impact of all the factors of your case.
20 C.F.R. §§ 404.1563(b), 416.963(b).
First, the Court notes that the day the ALJ rendered her opinion—June 30, 2015—was
actually one week before Plaintiff’s fifty-forth birthday. Thus, at the time the ALJ rendered her
The ALJ determined that Plaintiff had the RFC to “perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except she can occasionally climb, stoop, kneel, crouch and crawl;
and should have no exposure to unprotected heights or hazardous machinery.”
There are numerous references in the record showing Plaintiff’s birthday as July 7, 1961. See,
e.g.,  at 323, 322, 344, 349, 372.
opinion, Plaintiff was more than a year from being in the “advanced age” category. Moreover,
even if Plaintiff had been in a borderline situation, the ALJ satisfied her obligation to ensure that
age categories are not “mechanically” applied to the Plaintiff’s detriment. See Benton v. Colvin,
2015 WL 5024521, at *6 (W.D. La. Aug. 24, 2015); Stanridge-Salazar v. Massanari, 2001 WL
502506, at *1 (5th Cir. Apr. 24, 2001). The ALJ’s hypothetical to the VE assumed an individual
of Plaintiff’s age, education, work experience, and residual functional capacity. The VE opined
that there were jobs in the national economy that Plaintiff could perform. The ALJ’s reliance on
VE’s testimony, which accounted for Plaintiff’s age, satisfied the ALJ’s obligation in evaluating
Additional Evidence Presented to the Appeals Council
After the ALJ rendered her decision that Plaintiff was not disabled, Plaintiff appealed to
the Appeals Council and submitted additional evidence to the Appeals Council. The additional
evidence included the actual report for the MRI taken on April 9, 2015,8 and an August 3, 2015,
letter from a district manager of the Mississippi Department of Rehabilitation Services stating
that in her opinion “Ms. Tackett is unable to return to work due to limitations with ambulation,
standing, bending, lifting and severe pain.” ( at 443-44, 456). Plaintiff argues that based on
this additional evidence, the Appeal Council should have remanded the case to the ALJ for
When the Appeals Council receives a request for review, it “may deny or dismiss the
request for review, or it may grant the request and either issue a decision or remand the case to
an administrative law judge.” 20 C.F.R. § 404.967. “The Appeals Council will review a case
Previously, the record contained Dr. Smith’s evaluation of the MRI, but not the report from the
if—(1) [t]here appears to be an abuse of discretion by the [ALJ]; (2) [t]here is an error of law; (3)
[t]he action, findings or conclusion of the [ALJ] are not supported by substantial evidence; or (4)
[t]here is a broad policy or procedure issue that may affect the general public interest.” 20 C.F.R.
§404.970(a). Claimants are permitted to submit new evidence to the Appeals Council, and such
evidence may justify remand if it is material. See Castillo v. Barnhart, 325 F.3d 550, 551-52 (5th
Cir. 2003). Evidence is material if it relates to the time period for which the disability benefits
were denied and there is a reasonable probability that it would have changed the outcome of the
disability determination. Id.
If new evidence is presented to the Appeals Council, a court will review the record as a
whole, including the additional evidence, to determine whether the Commissioner’s findings are
supported by substantial evidence. Higginbotham v. Barnhart, 405 F.3d 332, 337 (5th Cir. 2005);
see also Jones v. Astrue, 228 Fed. App’x 403, 406-407 (5th Cir. 2007) (cautioning against
remanding cases based on new evidence presented to the Appeals Council without meaningful
regard for the substantial evidence standard). A court should remand based on new evidence
only if the new evidence is so inconsistent with the ALJ’s findings that it undermines the
ultimate disability determination. Higginbotham v. Barnhart, 163 Fed. App’x 279, 281-82 (5th
Plaintiff points to the fact that the MRI shows “[m]oderate central T12/L1 and L2-3
spinal stenosis secondary to a dorsal disc herniation . . . .” ( at 443). The MRI taken on
October 28, 2013, however, showed “[m]oderate spinal canal stenosis involving T12/L1 and
L2/L3.” ( at 446). Additionally, as previously discussed, Plaintiff’s treating physician
reviewed the MRI taken on April 9, 2015, and noted the following:
MRI of the lumbar spine was reviewed with the patient and looks good; she has the
usual post-op scar, nothing causing nerve compression. Not much more to do at
this point. Her thoughts today were focused on getting a copy of her medical
records to send to the lawyer helping her get disability.
( at 440-44). Plaintiff has not established that the MRI report is so inconsistent with Dr.
Smith’s findings and the ALJ’s findings that it undermines the ultimate disability determination.
As for the letter from the Mississippi Department of Rehabilitation Services, the Court
notes that a disability finding by a governmental or nongovernmental agency is not binding on
the Commissioner. Johnson v. Sullivan, 894 F.2d 683, 686 (5th Cir. 1990). Moreover, after
considering the letter, the Court concludes that there is not a reasonable probability that the letter
would change the outcome of the disability determination as the ALJ specifically considered the
very abilities, limitations, symptoms, and complaints mentioned in the letter and ultimately
rendered a decision—providing much greater detail and analysis than the state agency letter—
that Plaintiff was not disabled. The letter briefly mentions Plaintiff’s surgery, physical therapy,
and treatment by Dr. Smith, which were all considered by the ALJ. The letter does not mention
any other treatment, testing, or objective results, nor does it mention Dr. Smith’s determinations
that Plaintiff’s lumbar spine “looks good” and that she was not disabled.
Based on the foregoing, the Court finds that the Commissioner’s decision is supported by
substantial evidence and that no reversible errors of law were committed by the ALJ.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s Motion for Judgment on the Pleadings  is DENIED,
2. The Commissioner’s final decision is AFFIRMED,
3. This action is DISMISSED with prejudice, and
4. A separate judgment in accordance with Federal Rule of Civil Procedure 58 will be
SO ORDERED this the 16th day of February, 2017.
s/Michael T. Parker
UNITED STATES MAGISTRATE JUDGE
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