Howard v. Colvin

Filing 21

ORDER granting 14 Motion to Affirm. Signed by Magistrate Judge F. Keith Ball on 8/15/17. (YWJ)

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

LOYCE LAVOID HOWARD, JR.
VS.

PLAINTIFF
CIVIL ACTION NO. 5:16-cv-49-FKB

CAROLYN W. COLVIN, COMMISSIONER
OF SOCIAL SECURITY ADMINISTRATION

DEFENDANT

______________________________________________________________________________
MEMORANDUM OPINION AND ORDER
This cause is before the Court regarding the appeal by Loyce Lavoid Howard, Jr., of the
Commissioner of Social Security's final decision denying Howard's application for a period of
disability and Disability Insurance Benefits (“DIB”). In rendering this Memorandum Opinion
and Order, the Court has carefully reviewed the Administrative Record [8] regarding Howard=s
claims (including the administrative decision, the medical records, and a transcript of the hearing
before the Administrative Law Judge ("ALJ")), Appellant’s Brief [13], Defendant=s Motion to
Affirm Commissioner’s Decision [14], Memorandum Brief [15], and Plaintiff’s Response in
Opposition to the Motion to Affirm [19]. The parties have consented to proceed before the
undersigned United States Magistrate Judge, and the District Judge has entered an Order of
Reference [20]. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.
For the reasons discussed in this Memorandum Opinion and Order, the undersigned finds
that the Commissioner=s decision should be affirmed. Accordingly, the Motion to Affirm [14] is
granted.
I. PROCEDURAL HISTORY
Howard filed his application for a period of disability and DIB on April 1, 2013, and

alleged a disability onset date of July 10, 2010, when he was fifty-three years of age. [8] at 15.1
Howard’s earning record demonstrated that he had acquired sufficient quarters of coverage to
remain insured through December 31, 2015. Id. at 9.
Howard, who completed high school, was born on March 27, 1957. Id. at 15, 46. He
was fifty-eight years of age on the date he was last insured. Id. at 15. From 1996 to his
disability onset date of July 10, 2010, Howard worked as a driller in the offshore oil industry at
various international locations. Id. at 12, 47-48.
In his request for disability, Howard alleged that he is disabled and stopped working due
to a grand mal seizure disorder and breakthrough seizures. Id. at 135. His initial disability
determination described him as being of “advanced age” and stated that Howard alleged
disability due to seizures and sleep apnea. Id. at 63. In his application, Howard stated that he
was six feet tall and weighed two hundred twenty-five pounds. Id.
The Social Security Administration denied Howard=s application initially and upon
reconsideration. Id. at 67, 70. Howard requested a hearing, which was held on December 1,
2014, in Hattiesburg, Mississippi. Id. at 44. On December 22, 2014, the ALJ issued a decision
finding that Howard was not disabled. Id. at 9-16. The Appeals Council denied his request for
review on April 28, 2016, id. at 1, and this appeal followed.
II. MEDICAL HISTORY
The Court has determined that a detailed recitation of the medical records is not
necessary because the parties summarized Howard’s records in their briefs, and the ALJ
provided thorough summaries in his decision. Nevertheless, a review of the observations and

1. Citations

reflect the original pagination of the administrative record.
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evaluations of certain examiners will aid in the consideration of this case.
The records demonstrate that Howard sought treatment for seizures from Dr. Ruth
Fredericks beginning in 2006, and on a consistent basis from 2009 to 2014. Id. at 244, 265, 297.
During this time period, Howard reported experiencing seizures on May 1, 2006, and July 12,
2010. Id. at 244, 262. He also reported an “episode” that occurred on June 28, 2012, in which
he woke up, his bed was made, and he was fully dressed, presumably with no memory of those
events. Id. at 295. Dr. Fredericks treated Howard on an ongoing basis with a combination
drugs, and she reported throughout her notes that he had had no seizures, with the exceptions
previously noted. In her most recent treatment note dated November 17, 2014, Dr. Fredericks
stated that Howard was doing well and that he had had no seizures, although she stated that he
was not driving. Id. at 297.
In July 2012, Dr. Fredericks referred Howard to Dr. Timothy Cannon, a pulmonologist
with Sleep Solutions, located in Jackson, Mississippi, for treatment of sleep apnea. Id. at 279289, 295. After testing, Dr. Cannon diagnosed Howard with severe obstructive sleep apnea. Id.
at 287. After further sleep studies using a CPAP machine, Dr. Cannon found that Howard had a
good response to the CPAP with improvement in his sleep apnea symptoms. Id. at 289.
In May 2012, Dr. Fredericks ordered an MRI of Howard’s brain with and without
contrast. Id. at 270. The radiologist’s impression was “minimal right frontal sinus disease;
otherwise, unremarkable MRI brain without/with gadolinium.” Id.
III. HEARING AND DECISION
In his December 22, 2014, decision, the ALJ evaluated Howard=s impairments using the

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familiar sequential evaluation process2 and found that he has the severe impairments of seizure
disorder; obstructive sleep apnea, and obesity. Id. at 11. The ALJ also considered the combined
effect of these impairments and determined that they did not, singly or in combination, meet or
medically equal the criteria for any listed impairment. Id. at 11-12.
After considering the record, the ALJ found that Howard has the residual functional
capacity to “perform a full range of work at all exertional levels but with the following
nonexertional limitations: he is limited to work requiring no exposure to unprotected heights and
hazardous machinery. He cannot climb ladders, ropes, or scaffolds. He cannot perform any
commercial driving.” Id. at 12.
The ALJ considered that Howard does his own household chores, mows his own grass,

2. In evaluating a disability claim, the ALJ is to engage in a five-step sequential process, making
the following determinations:
(1)

whether the claimant is presently engaging in substantial gainful activity (if so, a
finding of “not disabled” is made);

(2)

whether the claimant has a severe impairment (if not, a finding of “not disabled”
is made);

(3)

whether the impairment is listed, or equivalent to an impairment listed, in 20
C.F.R. Part 404, Subpart P, Appendix 1 (if so, then the claimant is found to be
disabled);

(4)

whether the impairment prevents the claimant from doing past relevant work (if
not, the claimant is found to be not disabled); and

(5)

whether the impairment prevents the claimant from performing any other
substantial gainful activity (if so, the claimant is found to be disabled).

See 20 C.F.R. §§ 404.1520, 416.920. The analysis ends at the point at which a finding of
disability or non-disability is required. The burden to prove disability rests upon the claimant
throughout the first four steps; if the claimant is successful in sustaining his burden through step
four, the burden then shifts to the Commissioner at step five. Leggett v. Chater, 67 F.3d 558,
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drives short distances if he cannot get someone to drive him, and does his own grocery shopping.
Id. at 13-14. The ALJ noted that Howard maintains forty-one acres of land, will occasionally
drive a tractor (“bush hog”) and plant food plots for deer, and hunt. Id. at 13. He also noted that
Howard never drives to his doctor’s appointments. Id.
The ALJ found Howard partially credible, giving credence to his testimony regarding
infrequent seizures, and giving some weight to his statements assessing his residual functional
capacity. In the ALJ’s view, the residual functional capacity compensates for infrequent seizures
by restricting his exposure to unprotected heights, hazardous machinery, and commercial
driving. Id. at 14. The ALJ also considered that Howard’s obstructive sleep apnea would
restrict his exposure to unprotected heights, hazardous machinery, and commercial driving, as
the impairment “may reduce alertness.” Id. The ALJ also accounted for Howard’s obesity by
restricting postural activities of climbing ladders, ropes, or scaffolds. Id.
The ALJ also addressed handwritten notes in Dr. Frederick’s clinic notes which state that
Howard “cannot work” secondary to seizures. Id.; see 260, 295. The ALJ did not “deem these
statements as an opinion,” finding that “[t]he location of these statements in the notes suggests
these are statements of the claimant rather than opinions of the physician.” Id. at 14. The ALJ
further stated, however, that even “[if] they were deemed an opinion,” they “would not be given
controlling weight because whether a person is ‘disabled’ or cannot work is reserved to the
commissioner,” and the opinion was inconsistent with Howard’s activities of daily living. Id.
In sum, the ALJ found that Howard could not perform his past relevant work as a driller,
petroleum, which was medium in exertional demand and skilled (low-end) in character, with a

564 (5th Cir. 1995).
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specific vocational preparation level of six. Id. at 15. However, considering his education level,
using the Medical-Vocational Guidelines as a framework for decision-making, and consulting
with a vocational expert, the ALJ determined that there were jobs in the national economy that
Howard could perform. The ALJ concluded that Howard could perform the jobs of dishwasher;
cleaner, industrial setting; and laundry worker, all of which are medium in exertional demand
and unskilled in character, with a specific vocational preparation level of two. Accordingly, the
ALJ determined that Howard was not disabled from July 10, 2010, through the date of his
decision, December 22, 2014. Id. at 16.
IV. STANDARD OF REVIEW
This Court=s review is limited to an inquiry into whether there is substantial evidence to
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 Asubstantial 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 Ano substantial evidence@ will be found only where
there is a Aconspicuous absence of credible choices@ or Ano 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.
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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 is unsupported by substantial evidence and should
be reversed for two basic reasons, summarized as follows:
1. The Administrative Law Judge did not give proper weight and consideration to
the claimant’s treating physician’s medical opinions regarding the claimant’s
restrictions and ability to work.
2. The ALJ failed to properly assess claimant’s credibility.
[13] at 3-4.
A. Did the ALJ give proper weight to the opinion of Howard’s treating physican?
Plaintiff argues that the ALJ failed to accord the proper weight to the opinion of Dr. Ruth
Fredericks, his treating physician. Howard asserts that even if Dr. Fredericks’s opinions were
not given controlling weight, the ALJ should have afforded them greater weight.
The Fifth Circuit has held that Aordinarily the opinions, diagnoses, and medical evidence
of a treating physician who is familiar with the claimant=s injuries, treatments, and responses
should be accorded considerable weight in determining disability.@ Scott v. Heckler, 770 F.2d
482, 485 (5th Cir. 1985). However, the treating physician=s opinions are far from conclusive
because the ALJ has the sole responsibility for determining disability status. Greenspan v.
Shalala, 38 F.3d 232, 237 (5th Cir.1994).
Specifically, Howard points to two handwritten notations by Dr. Fredericks, one in a
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November 17, 2010, clinic note and another in a July 23, 2012, clinic note, which state “cannot
work 20 [to] s[eizures].” [13] at 3; [8] at 260, 295. Having reviewed these notations, the
undersigned finds no fault or error in the ALJ’s conclusion that they “not [be] deem[ed] . . . as an
opinion.” Given the location of the notations and lack of elaboration in the clinic notes, these
two notations are, at a minimum, ambiguous as to whether they are part of the history given by
Howard or an opinion by Dr. Fredericks.3
The Court further agrees with the ALJ that even if these notations were intended by Dr.
Fredericks to be an opinion, it “would not be given controlling weight” because whether Howard
is disabled or “cannot work” is a decision reserved to the Commissioner. [8] at 14. Neither the
November 17, 2010, or July 23, 2012, clinic notes contain objective findings that would support
a conclusory opinion that Howard “cannot work,” and if the two notations were intended to be
an opinion, neither of these clinic notes provide any elaboration or explanation for any such
alleged opinion. And as the ALJ correctly noted, such an opinion would be “inconsistent with
the claimant’s admitted activities of daily living.” Id. (emphasis added).
While the ALJ considered Dr. Fredericks’s diagnoses and records, the ALJ also pointed
to the opinion of a state agency physician who reviewed the record and determined that Howard
had no exertional limitations, should avoid hazardous machinery, unprotected heights, and
climbing or ladders, ropes, and scaffolds. Accordingly, substantial evidence supports the ALJ’s
decision, and this argument does not provide the basis for reversal or remand.

3. Howard also points to a January 31, 2011, clinic note in which Dr. Fredericks wrote, “cannot
operate machinery 20 [to] s[eizures].” The undersigned (and apparently the ALJ) question(s)
whether this notation was intended to be an opinion, for the same reasons. Regardless, the ALJ
included this limitation in Howard’s residual functional capacity (RFC) by including that “he is
limited to work requiring no exposure to . . . hazardous machinery.” [8] at 12.
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B. Did the ALJ fail to properly assess Howard’s credibility?
Plaintiff argues that the ALJ failed to properly assess his credibility. Furthermore,
Plaintiff argues that the ALJ failed to give any consideration to his long and consistent work
history when evaluating his credibility.
The Court observes that the evaluation of a claimant=s subjective symptoms is a task
particularly within the province of the ALJ who had an opportunity to observe whether he or she
seemed to be disabled. Harrell v. Bowen, 862 F.2d 471, 480 (5th Cir. 1988). In the decision, the
ALJ fully discussed Howard’s symptoms, the infrequency of his seizures, and his activities of
daily living. The ALJ observed that Howard’s 2006 seizure came on the heels of his missing a
dose of his seizure medication. [8] at 13. The ALJ pointed to medical records showing
consistent treatment, lack of seizure activity, and observations by his treating physician that he
was doing well. In evaluating credibility, the ALJ is not required to give claimant’s subjective
testimony precedence over conflicting medical evidence. Anthony v. Sullivan, 954 F.2d 284, 295
(5th Cir. 1992). Contrary to Plaintiff’s argument, the ALJ did consider Howard’s long work
history, noting that he had worked as a driller since 1996, [8] at 12, but this is one of many
factors to be considered regarding credibility. Martinez v. Chater, 64 F.3d 172, 174 (5th Cir.
1995). In reaching his decision, the ALJ looked at the medical evidence documenting infrequent
seizures and Howard’s relatively active lifestyle maintaining his house and several acres of land,
all while living alone.
In the end, the “claimant must show that he is so functionally impaired by his . . .
impairment that he is precluded from engaging in substantial gainful activity.” Taylor, 706 F.3d
at 603. In this case, Howard has failed to do so because the “record reflects that [claimant] was

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able to, and did, work for several years while suffering from ailments [he] now asserts are
disabling.” Vaughan v. Shalala, 58 F.3d 129, 131 (5th Cir. 1995); see also Fraga v. Bowen, 810
F.2d 1296, 1305 & n.11 (5th Cir.1987) (ability to work despite pre-existing condition supports
ALJ's finding of not disabled). In sum, remand is not required since there is no evidence in the
record that Plaintiff’s claims of seizures, sleep apnea, and obesity are severe enough to prevent
him from holding substantial gainful employment. Taylor, 706 F.3d at 603.
VI. CONCLUSION
For the reasons discussed in this Memorandum Opinion and Order, the undersigned finds
that the ALJ’s decision that Howard is not disabled is supported by substantial evidence.
Therefore, the undersigned finds that Defendant’s Motion to Affirm Commissioner’s Decision
[14] should be granted, Plaintiff=s request for remand should be denied, and this matter should be
dismissed with prejudice.
A separate judgment will be entered in accordance with Rule 58 of the Federal Rules of
Civil Procedure.
SO ORDERED, this the 15th day of August, 2017.
/s/ F. Keith Ball
UNITED STATES MAGISTRATE JUDGE

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