Thomas v. Commissioner of Social Security

Filing 19

MEMORANDUM OPINION. Signed by Magistrate Judge Roy S. Payne on 03/31/2017. (nkl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
DELISHA SHERELL THOMAS
v.
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION

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Case No. 2:15-CV-1535-RSP

MEMORANDUM OPINION

On May 30, 2013, Administrative Law Judge Mary Elizabeth Johnson issued a decision
finding that Petitioner Delisha Sherell Thomas was not disabled within the meaning of the Social
Security Act from September 1, 2009 through the date of the decision. Ms. Thomas, who was 33
with a high school education and one year of college at that time, was found to be suffering from
severe impairments including obesity, mild osteoarthritis to the right knee, and chronic back and
left hip pain. These impairments resulted in restrictions on her ability to work, and she had not
engaged in any substantial gainful activity since at least September 1, 2009. Before that time, she
had worked as a telemarketer, customer service representative, and phone sales agent.
After reviewing the medical records and receiving the testimony at the hearing, the ALJ
determined that Petitioner had the residual functional capacity (RFC) to perform the full range of
sedentary work, as defined in the Social Security Regulations, except that she could do no
squatting, kneeling, crawling, or climbing, and could not be exposed to unprotected heights. She
is limited to occasional bending, stooping or crouching and must be able to stand occasionally to
shift positions to alleviate back and hip pain.

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Considering Petitioner’s RFC, the ALJ relied upon the testimony of a Vocational Expert
and found that Petitioner had the residual functional capacity to perform her past relevant work as
a telemarketer, customer service representative, and phone sales agent as those jobs are described
in the Dictionary of Occupational Titles published by the Department of Labor. This resulted in a
finding of no disability. Petitioner appealed this finding to the Appeals Council, which denied
review on June 18, 2014. Petitioner timely filed this action for judicial review seeking remand of
the case for award of benefits.
This Court's review is limited to a determination of whether the Commissioner's final
decision is supported by substantial evidence on the record as a whole and whether the
Commissioner applied the proper legal standards in evaluating the evidence. See Martinez v.
Chater, 64 F.3d 172, 173 (5th Cir.1995); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.1994),
cert. denied, 514 U.S. 1120, 115 S.Ct. 1984, 131 L.Ed.2d 871 (1995). Substantial evidence is more
than a scintilla, but can be less than a preponderance, and is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion. Ripley v. Chater, 67 F.3d 552, 555 (5th
Cir.1995). A finding of no substantial evidence will be made only where there is a “conspicuous
absence of credible choices” or “no contrary medical evidence.” Abshire v. Bowen, 848 F.2d 638,
640 (5th Cir.1988) (citing Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.1983)). In reviewing the
substantiality of the evidence, a court must consider the record as a whole and “must take into
account whatever in the record fairly detracts from its weight.” Singletary v. Bowen, 798 F.2d 818,
823 (5th Cir.1986).
Plaintiff raises two issues on this appeal:

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1. The ALJ erred by finding that Plaintiff’s mental impairments are “non-severe” without
fulfilling her duty to develop the record in light of Plaintiff’s documented inability to
afford medical care.
2. The ALJ erred by failing to evaluate the effects of Plaintiff’s obesity as required by
unambiguous Agency policy set forth in SSR 02-1p.
Analysis:
The central issue raised by Petitioner is that the ALJ determined that Petitioner’s depression
was non-severe without further developing the record by obtaining any consultative evaluation.
The striking part of the record on this issue is that the only medical evidence on this issue, the
report of a treating psychiatrist, found that Petitioner was, indeed, unable to work due to her
depression. Dr. Tan, a psychiatrist, examined her on December 4, 2012, diagnosed “major
depressive disorder,” found that she had a Global Assessment of Functioning (GAF) score of 46,
and prescribed a three-month course of treatment. Tr. 247. He also found that she was not able to
work at that time. T. 230. Despite this finding by the treating psychiatrist, the ALJ determined
that Petitioner’s depression was non-severe, meaning that it was “a slight abnormality having such
minimal effect on an individual that it would not be expected to interfere with the individual’s
ability to work, irrespective of age, education or work experience.” Tr. 22.
The reasoning employed by the ALJ in determining that Petitioner’s depression was nonsevere, and thus not a factor in determining her capacity for work, is critical to this case. The ALJ
first noted that Dr. Tan’s treatment of Petitioner was both short and recent. Petitioner responds
that the record clearly shows that Petitioner’s lack of insurance and transportation impacted her
ability to receive regular care. The ALJ also noted that Dr. Tan’s report was “less persuasive than
other sources” because there was no elaboration of why he concluded that she could not work.
However, the ALJ did not identify the “other sources” she was referring to. Tr. 24. The
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Commissioner suggests in Brief that Dr. Strain’s consultative report supports the ALJ’s finding,
but Dr. Strain performed an orthopedic consultation, which is of little benefit to the evaluation of
depression. Tr. 232. In any event, Dr. Strain notes that Petitioner has a history of depression. The
bulk of the ALJ’s consideration of Dr. Tan’s report is a simple re-weighing of the symptoms and
findings relied upon by Dr. Tan.
It is simply not acceptable for the ALJ to determine that Petitioner’s depression is a “slight
abnormality” with “minimal effect” when the only medical evidence of record on the condition,
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from a personal examination by a treating specialist, is that it is severe enough to render her unable
to work at the time--at least in the absence of unusual factors not shown to be present here. On
this record there is no substantial evidence to support the ALJ’s determination that Petitioner’s
depression is non-severe.
Conclusion:
Having determined that the decision is not supported by substantial evidence, the ruling
below is reversed and remanded to the Commissioner pursuant to the fourth sentence of 42 U.S.C.
§405(g) for further proceedings consistent with this ruling.
SIGNED this 3rd day of January, 2012.
SIGNED this 31st day of March, 2017.

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ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE

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