Pierce v. Commissioner of Social Security

Filing 23

Memorandum Opinion and Order re 17 MOTION to Affirm Commissioner's Decision, 16 Appellant's Brief, 1 Complaint. Motion to Affirm 16 is granted, and this matter will be dismissed with prejudice. A separate judgment will be entered. Signed by Magistrate Judge F. Keith Ball on 9/28/16. (YWJ)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

RODNEY ALLEN PIERCE

PLAINTIFF

VS.

CIVIL ACTION NO. 3:14cv971-FKB

CAROLYN W. COLVIN, COMMISSIONER
OF SOCIAL SECURITY ADMINISTRATION

DEFENDANT

______________________________________________________________________________
MEMORANDUM OPINION AND ORDER
This cause is before the Court regarding the appeal by Rodney Allen Pierce of the
Commissioner of Social Security's final decision denying Pierce's application for Supplemental
Security Income (“SSI”) benefits. In rendering this Memorandum Opinion and Order, the Court
has carefully reviewed the Administrative Record [14] regarding Pierce’s claims (including the
administrative decision, the medical records, and a transcript of the hearing before the
Administrative Law Judge ("ALJ")), Plaintiff’s Memorandum Brief [16], and Defendant’s
Motion for an Order Affirming the Commissioner’s Decision [17] with supporting memorandum
[18]. The parties have consented to proceed before the undersigned United States Magistrate
Judge, and the District Judge has entered an Order of Reference [22]. 28 U.S.C. § 636(c); Fed.
R. Civ. P. 73.
For the reasons discussed in this Memorandum Opinion and Order, the Court finds that
the Commissioner’s decision should be affirmed. Accordingly, Plaintiff’s appeal is denied, and
Defendant's Motion for an Order Affirming the Decision of the Commissioner [17] is hereby
granted as set forth in this Opinion.
I. PROCEDURAL HISTORY

On November 7, 2011, Pierce filed for Supplemental Security Income (“SSI”) disability
benefits, asserting an onset date of October 25, 2010.1 [14] at 117.2 Pierce was born on
September 8, 1975, and he was thirty-six years of age as of the date of his application. Id. at 20.
Thus, he was considered a “younger individual” pursuant to the regulations. 20 C.F.R. §
416.963. Pierce has a high school education, and he has worked as a landscaping laborer, tire
repair servicer, and assembly worker. [14] at 70, 85. In his request for disability, Pierce alleged
that he was disabled because of schizophrenia, numbness and weakness in his legs, and back
pain. Id. at 142.
The Social Security Administration denied Pierce’s application initially and upon
reconsideration. Id. at 89, 90. Pierce requested a hearing, which was held on July 5, 2013. Id. at
64. Subsequently, the ALJ issued a decision finding that Pierce was not disabled. Id. at 10.
II. MEDICAL HISTORY
According to the records, Plaintiff has a history of lower back pain, including mild
bulging disks at L3-L4 and L4-L5, which was confirmed by medical testing. Id. at 284, 538.
Dr. Azhar Pasha of Anderson South Hospital in Meridian, Mississippi, formally diagnosed him
with lumbar spondylosis and degenerative disk disease of the lumbar spine. Id. at 434, 438, 441,
449, 457, 465, 467, 481. In 2011 and 2012, Dr. Pasha treated Pierce with pain medications and
performed a series of nerve blocks and radiofrequency ablations on Pierce's lumbar spine to help
relieve lower back and extremity pain, with good results. Id. The record shows that Pierce
continued seeking treatment from the same clinic for pain in his lower back and lower

1

At the hearing, Pierce amended his onset date to October 25, 2010. [14] at 69.

2

Citations reflect the original pagination of the administrative record.
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extremities in 2012 and 2013. Id. at 567- 575. Even though he was diagnosed with opioid
dependence and was counseled on taking medications in excess, id. at 574, the center continued
him on a narcotic pain regimen resulting in “stable” pain control. Id. at 571, 567-573. He
indicated that he wanted to “hold off on procedures” in March and June 2013, and, instead,
pursue pain management through medications. Id. at 568, 571.
The administrative record also contains several years of treatment notes regarding
Pierce’s mental health. In addition, these records shed some light on his criminal record. In a
May 2010 progress note, Terry T. Jordan, M.D., of Weems Community Mental Health Center
(“Weems”), in Lauderdale County, Mississippi, noted that Pierce had "gotten in trouble in the
past for selling drugs" and had "been jailed at Parchman because of drug charges." Id. at 502.
In May 2010, Pierce "adamantly" denied any suicidal or homicial ideations, compulsions,
or plans. Id. Pierce also denied any auditory or visual hallucinations and paranoia. Id. Dr.
Jordan diagnosed Pierce with benzodiazepine dependence, a history of multiple substance abuse
(opiates, stimulants, cocaine, methamphetamine, marijuana, alcohol), a history of likely
substance-induced psychotic disorder, and substance-induced mood disorder versus depressive
disorder not otherwise specified. Id. at 502-503. Dr. Jordan made a diagnosis of "rule out"
antisocial personality disorder and concluded that Pierce had antisocial personality disorder
traits. Id. at 503. Dr. Jordan also diagnosed back pain. Id.
From October 1 to 27, 2010, Pierce underwent court-ordered commitment and treatment
at Alliance Health Center in Meridian, Mississippi, under the care of Dr. Jordan. Id. at 289.
Prior to his admission, he had been in jail one week. Id. The Discharge Summary indicates that
Pierce choked his daughter and touched her inappropriately. Id. Pierce later reported that he

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was on probation and that a charge of assault on a police officer was pending against him. Id. at
316. Subsequent records state that he had threatened to kill his mother. Id. at 313.
Pierce also reported that, prior to his admission, he had suicidal ideations and threatened
suicide, had "drugged gasoline several times,” had not bathed for months, drank liquor daily,
abused Xanax and Lorcet, experienced daily hallucinations, delusions, and paranoia, yet had
been noncompliant with outpatient treatment and medications. Id. at 289. Upon his admission,
he was irritable, displayed sadness, and was easily angered. Id. Pierce showed the doctor areas
on his arms where he had cut himself. Id. Pierce reported that he heard voices in his head,
telling him to do certain things, and he had delusions of special powers. Id. During his
hospitalization, laboratory tests also revealed that Pierce had Hepatitis B and C. Id. at 289-290.
After a nearly one month course of various therapies, including group, individual,
activity, orientation and milieu, as well as pharmacotherapy, his condition and behavior had
improved. Id. at 290-291. Upon admission on October 1, 2010, his GAF was 30, and upon
discharge on October 27, his GAF had improved to 45+. Id. at 289. At discharge, his doctor
commented that his prognosis was good, and that condition would correlate “with the patient’s
commitment to aftercare followup and medication compliance as well as [abstinence] from
substance abuse. . . .” Id. at 292. He was to continue his course of psychotropic medications,
such as trazodone for insomnia and Risperdal for psychosis. Id.
After he was discharged from Alliance Health Center, Pierce was immediately committed
to the East Mississippi State Hospital (“EMSH”), where a bed had become available for him. Id.
at 291. During the course of treatment, he admitted to prior use of drugs, including crystal
methamphetamine, marijuana, and alcohol. Id. at 315. He stated that he took Lorcet for pain in

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his back. Id. However, Pierce admitted that he had abused pain medication, Lorcet 10 mg, and
that he normally took 8 or 9 tablets a day. Id. On the other hand, he reported that he had
decreased his dosage just prior to admission and claimed that he had not taken Lorcet in two
months. Id. He also reported that he had been taking Xanax daily since 2003 for anxiety. Id.
During his stay at EMSH, a treatment team pursued drug therapy. Id. at 318. During the
course of his treatment, he gained privileges and showed improvement. Id. When he was
discharged on November 30, 2010, his GAF had improved to 59, his condition was described as
“satisfactory,” and he was able to return home to live with his mother. Id. at 319-320. Pierce
did not verbalize or display anger or anxiety, and his speech was normal with appropriate mood
and affect. Id. He denied any suicidal or homicidal ideations, he denied any auditory or visual
hallucinations, and he did not suffer from delusions or paranoia. Id. The treating nurse
practitioner described his prognosis as “guarded given his extensive history of alcohol and drug
use.” Id.
The record reflects that Pierce sought regular follow-up mental health care and a course
of substance abuse outpatient therapy at Weems from December 2010 to June 2013. Id. at 361377, 495-497, 591-616. As of November 2011, his treating nurse practitioner, Susan Bobo,
commented that Pierce “continues current adaptation without major problem, difficulty or
symptoms in interim since last visit. Good vegetative functioning on current regimen.” Id. at
361. Bobo also observed that Pierce “exhibits no positive signs of psychosis or major affective
disruption, has no neuroleptic effects evident presently” with “adequate insight and alliance.”
Id. At that time, he was compliant with his medications and continued to follow up with Weems
for monthly injections of Invega Sustenna, which treated his schizophrenia. Id. at 361, 374-375.

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As to his education, he told interviewers at EMSH that he graduated high school with a
“certificate, special classes.” Id. at 316. A nurse practitioner at EMSH estimated that he may
have sub-average intelligence based upon his communicative skills and his use of vocabulary.
Id. at 317. His school records indicate that he made low passing marks in most classes without
repeating a grade. Id. at 136-137. Instead of giving his grade point average and class rank, his
“Graduation Facts” indicate that he “Completed Other Prescribed Program.” Id. at 137. At the
hearing, Pierce testified that he had completed twelfth grade with a certificate. Id. at 70.
III. HEARING AND DECISION
At the hearing on July 5, 2013, the ALJ and Pierce’s attorney elicited testimony from him
regarding his condition. Id. at 66. He testified that his typical day consisted of rising early in the
morning, occasionally helping with some household chores, and watching television throughout
the day. Id. 71-72. During the hearing, Pierce reported that he had heard voices and had
hallucinations of dead and living relatives. Id. at 77-79. He reported that these voices and
hallucinations interfered with his concentration. Id. However, Pierce also admitted that his
medications, including the Invega Sustenna shots, had helped his condition in that he did not
hear the voices as much as he did prior to receiving the treatment. Id. at 79.
In her September 2013 decision, the ALJ evaluated Pierce’s impairments and found that
he has the severe impairments of degenerative disc disease, obesity, schizophrenia, and
depression. Id. at 15. However, the ALJ concluded that Pierce did not have an impairment or
combination of impairments that met or medically equaled one of the listed impairments. Id. at
17. After considering the record, the ALJ found that Pierce has the residual functional capacity
to perform light work, but needs to sit or stand every 30 minutes, must have simple instructions

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only, and only occasional contact with the public and coworkers. Id. at 18.
The ALJ determined that Pierce is unable to perform any of his past relevant work as a
landscape laborer, tire repair serviceman, classified as heavy, semi-skilled work; or assembly
worker, classified as light, unskilled work. Id. at 20. The ALJ observed that Pierce has at least a
high school education and is able to communicate in English. Id. Using the Medical-Vocational
Rules as a framework, the ALJ concluded that Pierce is not disabled, whether or not he has
transferable job skills. Id. Considering Pierce's age, education, work experience, and residual
functional capacity, the ALJ concluded that jobs exist in significant numbers in the national
economy that Pierce can perform. Id. A vocational expert identified the representative
occupations as gate guard/gate tender, counter rental clerk at storage facility, and mail
clerk/sorter. Id. at 21. The vocational expert found that the available positions for gate
guard/gate tender were eroded by ten percent because of occasional contact with the public,
coworkers, and supervisors. Id. The vocational expert determined that the available jobs for
counter rental clerk at a storage facility were eroded by twenty-five percent due to contact with
others. Id. The vocational expert also concluded that the mail clerk/sorter positions were eroded
by ten percent for the requirement of changing positions every 30 minutes. Thus, the ALJ
determined that Pierce has not been under a disability since November 7, 2011, the date the
application was filed, through the date of the September 16, 2013, decision. Id.
The Appeals Council denied Pierce's request for review. Id. at 1. Thereafter, Plaintiff
filed this action. The matter has been briefed and is now ripe for review.
IV. STANDARD OF REVIEW
This Court’s review is limited to an inquiry into whether there is substantial evidence to

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support the Commissioner’s findings, Richardson v. Perales, 402 U.S. 389, 390, 401 (1971), and
whether the correct legal standards were applied, 42 U.S.C. § 405(g) (2006). Accord Falco v.
Shalala, 27 F.3d 160, 163 (5th Cir. 1994); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990).
The Fifth Circuit has defined the “substantial evidence” standard as follows:
Substantial evidence means 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. It must 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.”
Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983). In applying the substantial evidence
standard, the Court must carefully examine the entire record, but must refrain from re-weighing
the evidence or substituting its judgment for that of the Commissioner. Ripley v. Chater, 67 F.3d
552, 555 (5th Cir. 1995). Conflicts in the evidence and credibility assessments are for the
Commissioner and not for the courts to resolve. Martinez v. Chater, 64 F.3d 172, 174 (5th Cir.
1995). Hence, if the Commissioner’s decision is supported by the evidence, and the proper legal
standards were applied, the decision is conclusive and must be upheld by this Court. Paul v.
Shalala, 29 F.3d 208, 210 (5th Cir. 1994), overruled on other grounds, Sims v. Apfel, 530 U.S.
103 (2000).
V. DISCUSSION OF THE ALLEGED ERRORS
AND APPLICABLE LAW
Plaintiff argues that the ALJ’s decision should be reversed for the following reasons:
1.

The ALJ erred in her formulation of the Plaintiff’s RFC.

2.

The ALJ erred in her findings concerning the Dictionary of Occupational
Titles.

3.

The ALJ created her RFC based upon no medical opinion whatsoever.
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4.

The ALJ erred in her weight given to the opinions of nurse practitioners
under SSR 06-3P.

5.

The ALJ erred in her assessment of the Plaintiff’s education.

[16] at 1-18.
A. Did the ALJ err in her formulation of Plaintiff’s RFC?
Pierce argues that the ALJ erred when she found an RFC that allows him to perform light
work, with the option to sit or stand every thirty minutes, with simple instructions only, and only
occasional contact with the public and co-workers. More specifically, Pierce argues that the
RFC did not adequately account for his severe impairment of schizophrenia when the ALJ stated
that Pierce could have “occasional” contact with the public and co-workers. Furthermore,
Plaintiff argues that he “possibly” meets Listing 12.03.
“[T]he ALJ has the sole responsibility for determining the claimant’s disability status.”
Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990). Although the record contains evidence
supporting Plaintiff’s argument, substantial evidence in the record supports the ALJ’s decision.
In his brief, Pierce argues that the RFC of “occasional contact with the public and
coworkers” did not sufficiently account for his severe impairment of schizophrenia. [16] at 7-9.
Plaintiff quotes his hearing testimony that he has hallucinations and problems focusing. Id.
Without citation to the record, he also asserts that a treating nurse practitioner, Susan Bobo,
“showed the presence of delusions or hallucinations” and “illogical thinking or looseness of
associations with blunt, flat or inappropriate affect” and that she found that he had “marked
difficulties maintaining social functioning” and “four or more episodes of decompensation,”
which would meet Listing 12.03 (A) and (B).
Listing 12.03 states, as follows:
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Schizophrenic, Paranoid, and Other Psychotic Disorders: Characterized by the
onset of psychotic features with deterioration from a previous level of
functioning.
The required level of severity for these disorders is met when the requirements in both A
and B are satisfied, . . . .
A. Medically documented persistence, either continuous or intermittent, of one or
more of the following:
1. Delusions or hallucinations; or
2. Catatonic or other grossly disorganized behavior; or
3. Incoherence, loosening of associations, illogical thinking, or poverty of
content of speech if associated with one of the following:
a. Blunt affect; or
b. Flat affect; or
c. Inappropriate affect; or
4. Emotional withdrawal and/or isolation;
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence,
or pace; or
4. Repeated episodes of decompensation, each of extended duration; . . . .
Listing 12.03 (A) and (B), 20 C.F.R. Ch. III, Pt. 404, Subpt. P, App. 1 (2016).
In September 2011, Nurse Practitioner Bobo at Weems completed a Mental Impairment
Questionnaire regarding Pierce. [14] at 354-359. Therein, she opined that Pierce had no
restrictions of daily living activities, marked difficulties in maintaining social functioning,
moderate deficiencies maintaining concentration, persistence or pace, and four or more episodes
of decompensation, each of extended duration.3 Id. at 355-356.

3

Although Nurse Practitioner Bobo noted that Pierce experienced four or more episodes,
she gave no dates to support this assessment. Pierce also fails to support his argument with
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Pierce points to the presence of delusions and hallucinations and illogical thinking or
looseness of associations with blunt, flat or inappropriate affect shown in Bobo’s records and
contends that he meets paragraph A, subparts 1 and 3, of Listing 12.03. [16] at 9. Pierce also
refers to Bobo’s opinions that he has marked difficulties in maintaining social functioning and
four or more episodes of decompensation, each of extended duration, and contends that he meets
paragraph A, subparts 2 and 4, of Listing 12.03.
In order to meet Listing 12.03, Pierce must show that he met the requirements of both
paragraphs A and B.4 Although the ALJ did not discuss paragraph A in her decision, she
considered paragraph B and found that Pierce did not meet the paragraph B criteria of the
Listing. [14] at 17. Specifically, the ALJ found that Pierce had only moderate difficulties in
social functioning and no episodes of decompensation of extended duration. The ALJ concluded
that “[b]ecause the claimant’s mental impairments do not cause at least two ‘marked’ limitations
or one ‘marked’ limitation and ‘repeated’ episodes of decompensation, each of extended
duration, the ‘paragraph B’ criteria are not satisfied.” Id.
The ALJ acknowledged and addressed Bobo’s September 2011 Mental Impairment
Questionnaire. Id. at 19-20. In fact, she also acknowledged that another nurse practitioner at
Weems, Noel Palmer, updated Bobo’s report on June 27, 2013, indicating no change in Pierce’s
difficulty maintaining social functioning. Id. at 20. The ALJ found, however, that the Weems

citation to any specific dates of decompensation.
4

A claimant may also meet Listing 12.03 by satisfying the requirements of paragraph C.
The ALJ found that Pierce did not meet the requirements of paragraph C, [14] at 17, and Pierce
does not assert in his brief that he met the requirements of paragraph C.
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“office records are inconsistent” with these opinions.5 Id. As the ALJ noted,
At his most recent documented visit with Mr. Palmer, the claimant appeared
reality based and future oriented with no positive signs of psychosis or major
affective disruption. His memory and concentration were grossly intact, his
insight fair, and his reliability good. Mr. Palmer assigned a GAF of 52, indicating
moderate symptoms.
Id.; see Id. at 593.
The ALJ also noted that two medical consultants, David Powers, Ph.D. and Gregg Johns,
Ph.D., both found that Pierce had only moderate mental limitations. Id. at 19. In a September 28,
2011, Mental Residual Functional Capacity Assessment, Dr. Powers found that Pierce was only
moderately limited in social interaction. Id. at 348-350. In another such assessment on December
19, 2011, Dr. Johns found Pierce either not significantly limited or only moderately limited in all
areas of social interaction. Id. at 419-421. Dr. Johns concluded,
When complying with prescribed meds and maintaining sobriety, claimant can
understand and remember simple instructions and carry out these tasks. He 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 421.
Jan P. Boggs, Ph.D. conducted a comprehensive mental status examination on January
12, 2011. Id. at 329. Having examined Pierce and reviewed his records, Dr. Boggs stated that he
“did not observe any psychosis” and concluded that Pierce is “capable of following directions
and of sustaining task as long as he stays clear of drug and alcohol abuse” and is “capable of

5

The ALJ also stated that these nurse practitioners’ opinions were given “some
consideration” in her decision, but were “not given the weight of treating source opinions.” [14]
at 20. The weight given to these nurse practitioners’ opinions is addressed separately below.
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relating appropriately to others.” Id. at 332.
The primary issue is whether substantial evidence supports the ALJ’s conclusion that
Pierce has moderate difficulties in social functioning, rather than marked, as required to meet
paragraph B of Listing 12.03. While there is conflicting evidence regarding the severity of
Pierce’s social functioning, it is not the role of this Court to re-weigh the evidence, try the case
de novo, or substitute its judgment for that of the ALJ. See Newton v. Apfel, 209 F.3d 448, 452
(5th Cir. 2000). “Conflicts in the evidence are for the [Commissioner] and not the courts to
resolve.” Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999)(quoting Selders v. Sullivan, 914 F.2d
614, 617 (5th Cir.1990)).
The Court finds that substantial evidence supports the ALJ's finding that Pierce did not
have the requisite deficits in social functioning to meet Listing 12.03(B)(2). The ALJ considered
the evidence urged by Pierce, specifically, his hearing testimony and Bobo’s opinion that Pierce
had marked difficulties in maintaining social functioning. See [14] at 17-20. But the record in
this case contains other evidence that “a reasonable mind might accept as adequate to support
[the ALJ’s] conclusion” of moderate difficulties in maintaining social functioning. Hames, 707
F.2d at 164. Accordingly, substantial evidence supports the ALJ’s formulation of the RFC and
conclusion that Pierce does not meet Listing 12.03, and this assignment of error is without merit.
B. Did the ALJ err in her findings concerning the Dictionary of Occupational Titles?
Pierce argues that the ALJ erred when she relied on testimony from the vocational expert
that was not consistent with the Dictionary of Occupational Titles. Based on the vocational
expert’s testimony, the ALJ identified three jobs that Pierce could perform: gate guard/gate
tender, counter rental clerk at a storage facility, and mail clerk/sorter. Plaintiff argues that the

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descriptions of these jobs, as found in the Dictionary of Occupational Titles, are beyond
Plaintiff’s capabilities, based on the RFC as determined by the ALJ. More specifically, Pierce
argues that the gate guard/gate tender job and the counter rental clerk job require “significant”
work with people, which is beyond the RFC’s limitation of “only occasional contact with the
public and coworkers.” Pierce further asserts that while the mail clerk/sorter job does not
require significant contact with people, its requirement of “attaining precise set limits, tolerances
and standards” is beyond the RFC’s description finding that Pierce can perform a job that “must
have simple instructions only.” [14] at 18.
The Fifth Circuit has addressed perceived conflict between a vocational expert and the
Dictionary of Occupational Titles, stating:
claimants should not be permitted to scan the record for implied or unexplained
conflicts between the specific testimony of an expert witness and the voluminous
provisions of the [Dictionary of Occupational Titles], and then present that
conflict as reversible error, when the conflict was not deemed sufficient to merit
adversarial development in the administrative hearing.
Carey v. Apfel, 230 F.3d 131, 146-47 (5th Cir. 2000). “Moreover, as the Fifth Circuit observed in
Carey, the Dictionary of Occupational Titles job descriptions are not comprehensive and should
not be given a role that is exclusive of the Vocational Expert’s testimony as to whether a
particular claimant can perform a particular job.” Abel v. Astrue, 2011 WL 1099890 at *7 (S.D.
Miss. Mar. 2, 2011).
In this case, the vocational expert took into consideration the need for “only occasional
contact with the public or coworkers,” [14] at 86, when she decreased the number of jobs
available by a certain percentage based on that limitation. Although Pierce’s counsel presented
the vocational expert with his own hypothetical based on his interpretation of Pierce’s

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restrictions, he did not cross-examine the vocational expert about any purported conflict between
the ALJ’s hypothetical, the vocational expert’s response, and the Dictionary of Occupational
Titles. In short, the vocational expert's testimony was not challenged or contradicted in any
manner. The Court, therefore, concludes that the record reflects an adequate basis for the ALJ's
reliance on the vocational expert's testimony on this issue.
Moreover, the mail clerk/sorter, with its specific vocational preparation (“SVP”) of 2 and
its reasoning ability level of R3, id. at 228, is consistent with the residual functional capacity
determination that Pierce can perform a job with “simple instructions only.” Courts have held
that jobs with a reasoning level of 3 are consistent with an RFC limited to simple work. See, e.g.,
Hurtado v. Comm’r of Soc. Sec., 425 Fed. Appx. 793, 795 (11th Cir. 2011)(finding “no apparent
conflict” between reasoning level 2 and 3 jobs and RFC limited to “simple, routine tasks”); Terry
v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009)(finding no conflict between job requiring level 3
reasoning and RFC limited to simple work); Auger v. Astrue, 792 F. Supp. 2d 92, 97 (D. Mass.
2011)(citing numerous cases, court stated that it was “join[ing] the great weight of authority on
this issue” and held that no conflict existed between job with reasoning level of 3 and RFC
limited to simple work). In fact, this Court has held that there is no “obvious, direct conflict”
between “the ability to perform only simple, repetitive tasks . . . [and] Level 3 reasoning.” Abel,
2011 WL 1099890 at *7. Accordingly, this argument does not provide a basis for relief, the
ALJ’s decision on this issue is not contrary to law, and it is supported by substantial evidence.
C. Did the ALJ create her RFC based upon no medical opinion whatsoever?
The ALJ found that Pierce has the RFC “to perform light work as defined in 20 CFR
416.967(b) but needs to sit or stand every 30 minutes, must have simple instructions only and

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only occasional contact with the public and coworkers.” [14] at 18. Pierce argues that no
underlying medical opinion supports the RFC. Pierce is incorrect.
In her opinion, the ALJ stated that she gave consideration to the opinion of Robert
Culpepper, M.D., a physician who evaluated Pierce’s medical records for the Office of Disability
Determination Services (“DDS”). [14] at 19. Based on Pierce’s medical records, Dr. Culpepper
completed a Physical Residual Functional Capacity Assessment on January 3, 2012, providing a
medical opinion on Pierce’s physical and exertional limitations. Id. at 423-430. Dr. Culpepper’s
opinion supported a finding that Pierce was capable of light work with occasional postural
activities, as defined in 20 C.F.R. § 416.967(b). See id. Accordingly, the RFC found by the ALJ
is supported by a medical opinion.
Pierce also argues that the ALJ should have ordered a consultative examination. Under
the applicable regulations, if sufficient medical or other evidence is not provided by the claimant,
the secretary is required to make a decision based on the information available. See 20 C.F.R. §
404.1516 (2016). In some cases, however, a consultative examination is required to develop a
full and fair record. 20 C.F.R. § 404.1517(2016).
Nevertheless, the ALJ has the discretion to determine if such an examination is required.
The Fifth Circuit has stated “[t]o be very clear, ‘full inquiry’ does not require a consultative
examination at government expense unless the record establishes that such an examination is
necessary to enable the administrative law judge to make the disability decision.” Turner v.
Califano, 563 F.2d 669, 671 (5th Cir. 1977)(emphasis in original); see also Jones v. Bowen, 829
F.2d 524, 526 (5th Cir. 1987). While an “administrative law judge has a duty to fully and fairly
develop the facts relative to a claim for disability benefits,” reversal is not warranted for an

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ALJ’s failure to fully and fairly develop the record “unless the claimant shows that he or she was
prejudiced by the ALJ’s failure.” Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000). Prejudice
may be established by showing that additional evidence would have been produced if the ALJ
had fully developed the record, and that the additional evidence might have led to a different
decision. See Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984).
In this case, the undersigned finds that there was sufficient medical evidence in the
record on which the ALJ could base her RFC determination, thus the ALJ did not err by not
ordering a consultative examination. Moreover, Pierce has not shown any additional evidence
that would have been produced if the ALJ had ordered a consultative examination or that any
such additional evidence might have led to a different decision. Accordingly, this issue has no
merit.
D. Did the ALJ err in the weight she gave to the opinions
of the nurse practitioners under SSR 06-3P?
Plaintiff argues that the Commissioner failed to follow Social Security Ruling 06-3P and
give due consideration to medical evidence when she gave only “some consideration” to the
opinions of Nurse Practitioners Bobo and Palmer. Bobo provided her opinions in a “Mental
Impairment Questionnaire,” and Palmer completed an “Updated Mental Opinion.” [14] at 354,
586. Specifically, the ALJ stated that “[s]ome consideration is given to these opinions but they
are not given the weight of treating source opinions.” Id. at 20. The ALJ went on to explain that
the “office records are inconsistent” with these opinions. Id.
Acceptable medical sources, as found in 20 C.F.R. §§ 404.1513 and 416.913(a), include
licensed physicians or osteopathic doctors, licensed or certified psychologists, licensed

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optometrists (for visual disorders), licensed podiatrists (for foot and ankle impairments only),
and qualified speech pathologists (for speech and language impairments only). Thus, the
regulations clearly outline what qualifies as an acceptable medical source, and a nurse
practitioner is not among those listed. 20 C.F.R. § 416.913(a). 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.
Under Social Security Ruling 06-3P, the ALJ may employ several factors or principles to
consider the opinions of not “acceptable medical sources” as well as those from “other sources,”
such as nurse practitioners. The factors include,
1. How long the source has known and how frequently the source has seen the
individual;
2. How consistent the opinion is with other evidence;
3. The degree to which the source presents relevant evidence to support an opinion;
4. How well the source explains the opinion;
5. Whether the source has a specialty or area of expertise related to the individual’s
impairment(s); and
6. Any other factors that tend to support or refute the opinion.
SSR 06-3p, 2006 WL 2263437 (Aug. 6, 2006).
In this case, the ALJ considered the nurse practitioners’ opinions and noted that they
conflicted with their office records. A review of the opinions of Bobo and Palmer demonstrates
that they are somewhat inconsistent with their observations of Pierce during the majority of his
appointments with them. On the whole, their notes describe a person who is complying with

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treatment and making strides toward better mental health. On the other hand, their opinions
describe a patient who suffers from a panoply of ailments with little to no hope for an improved
mental health existence. For instance, on September 29, 2011, the same date of her Mental
Impairment Questionnaire, Bobo’s treatment notes relate that “patient exhibits no positive signs
of psychosis or major affective disruption, has no neuroleptic effects evident presently. Adequate
insight and alliance. He continues to struggle with anxiety c/o but is denying return of
psychosis.” [14] at 363. Although Bobo mentioned that Pierce had anxiety in her treatment
notes, she never commented that he suffered panic attacks with the frequency as described in the
medical source statement. In February 2012, Bobo noted that the “patient reports [that he]
presently continues current adaptation without major problem, difficulty or symptoms in interim
since last visit. Good vegetative functioning on current regimen.” Id. at 495. She also
commented that his attitude was cooperative, he answered appropriately and volunteered some
conversation, and his thought process was coherent. Id. Although Pierce requested Xanax for
anxiety, Bobo did not prescribe it, and Pierce declined a prescription for another anxiety
medicine, Atarax. Id. at 496. Bobo discussed with him that his anxiety could be a side effect of
diet pills that he was taking. Id. Bobo also noted that he was not taking his antidepressant
medication. Id.
Likewise, the opinions of Bobo and Palmer are inconsistent with the opinions of Dr.
Powers, Dr. Johns, and Dr. Boggs, the consultative examiner who evaluated Pierce on January
12, 2011, less than two months after Pierce’s release from EMSH. Id. at 328. Having reviewed
the records of treatment from Weems and Pierce’s records from his hospitalization in October
and November 2010, Boggs was informed of Pierce’s mental health status. Even so, after

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examining Pierce, Dr. Boggs concluded that Pierce was “capable of following directions and
sustaining task as long as he stay[ed] clear of drug and alcohol abuse” and “capable of relating
appropriately to others” and that Pierce’s “adaptation largely depend[ed] on his abstinence from
drugs and alcohol.” Id. at 332.
In this case, the ALJ weighed the medical evidence and determined that the opinions
from Bobo and Palmer were inconsistent with their office records. The ALJ is “‘entitled to
determine the credibility of medical experts . . . and weigh their opinions accordingly.’”
Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994)(quoting Scott v. Heckler, 770 F.2d 482,
485 (5th Cir. 1985)). Although the ALJ did not go into great detail in describing her reasons for
giving only “some consideration” to the nurse practitioners’ opinions, great detail was not
required, either by regulation or SSR-06p. “Neither the regulation nor interpretive case law
requires that an ALJ specifically name, enumerate, and discuss each factor in outline or other
rigid, mechanical form.” Wiltz v. Commissioner, 412 F. Supp. 2d 601, 608 (E. D. Tex. 2005).
Instead, “mindful of a general duty of deference to the Commissioner’s decisions, reviewing
courts should examine the substance of an ALJ’s decision, rather than its form.” Id.
The record shows that there is medical evidence in the record that “a reasonable mind
might accept as adequate to support the [ALJ’s] conclusion” on the appropriate weight to be
afforded the opinions of the nurse practitioners. Further, the ALJ did not violate the applicable
legal standard with respect to the appropriate weight to be afforded their opinions. Accordingly,
this issue provides no basis for reversal.
E. Did the ALJ err in her assessment of the Plaintiff’s education?
Pierce argues that the ALJ erred when she concluded that he “has at least a high school

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education and is able to communicate in English,” citing 20 C.F.R. § 416.964. [14] at 20.
Although there is no question of Pierce’s ability to communicate in English, he does dispute that
he has a “high school education.” Specifically, he asserts that he finished the twelfth grade with
“a special education certificate.” [16] at 18. Thus, he argues that his level of education should
have been listed as not more than “marginal” or “limited.” Id. at 19. Furthermore, he reasons
that the jobs identified by the vocational expert are beyond his educational capabilities because
the hypothetical posed to the vocational expert was based on a person with a high school
education.
The record, however, belies Pierce’s contentions. Contrary to Pierce’s arguments, he did
not testify that he finished with a “special education certificate.” Instead, Pierce testified at the
hearing that he finished twelfth grade “with a certificate,” and he presented no more evidence on
this issue. Id. at 70. Moreover, at the hearing, the ALJ had the opportunity to evaluate his
educational level by observing his behavior and interacting with him. In addition, the ALJ had at
her disposal Pierce’s education records, treatment records, and applications for benefits to aid
her in reaching her decision. All of these records create a more complete picture of his
educational background than that now asserted by him. These records also support the ALJ’s
conclusion that he has the educational level sufficient to perform the jobs identified by the
vocational expert.
Under the heading “Graduation Facts,” his school records reflect that he finished the
twelfth grade by completing an “Other Prescribed Program,” but do not indicate that Pierce had
been enrolled in special education classes. Id. at 137. In fact, there is no mention of special
education courses in his transcript. Id. While he never repeated a grade on the elementary

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level, he repeated only a total of four classes throughout junior high and high school to obtain
passing grades. Id. at 136-137. During his high school years, he took the standard courses of
English, mathematics, science, and social studies. Id. In addition, beginning his sophomore
year, he enrolled in vocational courses, which counted as two and one-half credits each year,
rather than the one credit each year for each of his standard courses. Id. The Court also observes
that Pierce achieved A’s, B’s, and C’s in his vocational courses. Id.
Other records also support the ALJ’s conclusion that he had a high school education. In
his application for benefits, Pierce himself stated that he had completed twelfth grade, and he
specifically denied that he had attended special education classes. [14] at 143. Nurse
Practitioners Bobo and Palmer, furthermore, consistently noted that he had average intelligence.
Id. at 361, 363, 365, 495, 497, 591, 593, 595, 597, 599, 601, 603, 605, 607, 611, 613. At his
initial intake interview at Weems on December 7, 2010, he stated that the highest level of
education he attained was twelfth grade, and, once again, he specifically denied taking special
education courses. Id. at 376. During another evaluation at Weems on December 16, 2010, he
reported that he had finished twelfth grade. Id. at 374. Pierce’s November 2010 discharge
summary from EMSH observed that he did not suffer from retardation, id. at 314, but he reported
that he “graduated with a certificate, special classes.” Id. at 316.
While there is some contradictory information regarding his educational level, this does
not undermine the ALJ’s determination that Pierce is also a high school graduate. Pierce’s
school records unequivocally demonstrate that he took regular courses with vocational training,
not special education courses, as he now argues. Even so, courts have upheld decisions where
plaintiffs disputed that they had obtained a “high school education” after they achieved a high

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school education through a special certificate or special education classes. See Perez v.
Barnhart, 415 F.3d 457 (5th Cir. 2005); Johnson v. Barnhart, 312 F. Supp. 2d 415, 428 (W.D.
NY. 2003).
Moreover, Pierce fails to present any evidence of the impact his education level would
have on his ability to perform the jobs identified by the vocational expert. More importantly,
“[t]he regulations command a finding of not disabled for illiterate or marginally educated
claimants whose RFC still permits them to do light or sedentary work.” Perez, 415 F.3d at 464
n.6; see also Hatcher v. Apfel, 167 F. Supp. 2d 1231, 1238 (D. Kan. 2001). In this case, all of
the jobs identified by the vocational expert were classified as light and unskilled. Accordingly,
even if Pierce had a marginal or limited education, he would still be considered as not disabled
under the regulations. See 20 C.F.R. Ch. III, Pt. 404, Subpt. P, App. 2, §§ 201.23, 201.24,
202.16, 202.17. Accordingly, there is substantial evidence to support the ALJ’s conclusion that
Pierce is not disabled.
VI. CONCLUSION
For the reasons discussed in this Memorandum Opinion and Order, the Court finds that
Defendant's Motion for an Order Affirming the Decision of the Commissioner [17] should be
granted, and Plaintiff’s appeal should be denied. Accordingly, the Commissioner’s decision is
hereby upheld, and this matter will be dismissed with prejudice.
Pursuant to Rule 58 of the Federal Rules of Civil Procedure, a separate judgment will be
entered.
SO ORDERED, this the 28th day of September, 2016.
/s/ F. Keith Ball
UNITED STATES MAGISTRATE JUDGE
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