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Pinkston v. Colvin

United States District Court, Fifth Circuit

April 29, 2013



S. ALLAN ALEXANDER, Magistrate Judge.

This case involves an application under 42 U.S.C. § 405(g) for judicial review of the decision of the Commissioner of Social Security denying the application of plaintiff Billy Anderson Pinkston for a period of disability (POD) and disability insurance benefits (DIB) under Sections 216(i) and 223(d) of the Social Security Act. Plaintiff protectively filed applications for POD and DIB on July 25, 2006, alleging disability beginning November 7, 2005. Docket 7, p. 258. Plaintiff's claim was denied initially on August 31, 2006 ( Id. at 123-24.) and upon reconsideration on December 12, 2006. Id. at 127-128. A hearing was held before an Administrative Law Judge [ALJ] on November 12, 2008. Id. at 28-46. Plaintiff requested and was granted a supplemental hearing held on July 21, 2009 during which the ALJ took medical testimony from two consulting medical experts, Dr. Lawrence Reese and Dr. Paul Kosko. Id. at 88-103. The ALJ issued an unfavorable decision on July 30, 2009. Id. at 109-118.

The Appeals Council granted review of the case on June 29, 2010, almost four years after his application for benefits, and remanded the case to the ALJ to obtain updated treatment records, additional evidence from a medical expert to clarify the nature and severity of plaintiff's impairments, reconsider plaintiff's RFC, evaluate the treating, non-treating, and non-examining source opinions and explain the weight given to each opinion, and if warranted, obtain supplemental VE testimony. Id. at 125-26. The remand hearing was held on April 15, 2011. Id. at 47-87. The ALJ issued the second unfavorable decision on April 28, 2011, ( Id. at 11-21) and the Appeals Council denied plaintiff's request for review. Id. at 1-3. Plaintiff timely filed the instant appeal from the decision, and it is now ripe for decision.

In accordance with the provisions of 28 U.S.C. 636 (c), both parties consented to have a United States Magistrate Judge conduct all proceedings in this case. Therefore, the undersigned has authority to issue this opinion and the accompanying final judgment.


Plaintiff Billy Anderson Pinkston was born February 1, 1946 and was fifty-nine (59) years old at the time of his alleged onset of disability on November 7, 2005. Docket 7, p. 302. He has a high school education. Docket 7, p. 285. His past employment experience includes work as a farmer, machine operator, and as a crewman and harvesting forester at a timber company. Docket 7, 281. His prior employment as a timber supervisor was classified by the vocational expert [VE] as skilled light and his work as a heavy equipment operator was classified as skilled medium. Docket 7, p. 83. On July 25, 2006 plaintiff protectively filed an application for a Period of Disability and Disability Insurance Benefits. Docket 7, p. 288. Plaintiff contends that he became disabled on November 7, 2005 due to a complication from herpes simplex virus keratitis in his left eye. Docket 7, p. 280.

The ALJ found that the plaintiff had the "severe impairment" of left eye blindness from herpes simplex virus keratitis but that it did not meet or equal a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Docket 7, p. 14-15. He found that the plaintiff retained the Residual Functional Capacity (RFC) to "perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant cannot perform any jobs requiring good sight and/or visual acuity." Docket 7, p. 15. In light of testimony by a VE at the hearing, the ALJ found plaintiff capable of performing jobs that exist in significant numbers in the national economy, including a kitchen helper and box bender. Id. at 20. Therefore, the ALJ found plaintiff not disabled under the Social Security Act. Id. at 21.

Plaintiff alleges the ALJ erred in failing to properly consider all of plaintiff's medically determined impairments at Step 2, improperly assessing his RFC which resulted in an improper determination at Step 5 and failing to find plaintiff disabled in light of the testimony of the vocational expert and/or pursuant to Medical-Vocational Rule 202.06. Docket 10, p. 1.

Although plaintiff raises these three issues as grounds for appeal, the undersigned is of the opinion that the ALJ did not properly evaluate and weigh the opinions of the plaintiff's treating physician, Dr. Nicole Anderson-Weiss, which resulted in an improper RFC. Had the ALJ properly weighed the opinions of the treating physician, as well as the remaining physicians that provided opinions, he would have concluded that the plaintiff could perform, at the most, light work. An RFC that limited plaintiff to light work would have been resulted in a determination that plaintiff is disabled pursuant to Medical-Vocational Rule 202.06. Therefore, the ALJ's opinion unsupported by substantial evidence.


In determining disability, the Commissioner, through the ALJ, works through a five-step sequential evaluation process.[1] The burden rests upon plaintiff throughout the first four steps of this five-step process to prove disability, and if plaintiff is successful in sustaining his burden at each of the first four levels, then the burden shifts to the Commissioner at step five.[2] First, plaintiff must prove he is not currently engaged in substantial gainful activity.[3] Second, plaintiff must prove his impairment is "severe" in that it "significantly limits his physical or mental ability to do basic work activities...."[4] At step three the ALJ must conclude plaintiff is disabled if he proves that his impairments meet or are medically equivalent to one of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1, §§ 1.00-114.09 (2010).[5] If plaintiff does not meet this burden, at step four he must prove that he is incapable of meeting the physical and mental demands of his past relevant work.[6] At step five, the burden shifts to the Commissioner to prove, considering plaintiff's residual functional capacity, age, education and past work experience, that he is capable of performing other work.[7] If the Commissioner proves other work exists which plaintiff can perform, plaintiff is given the chance to prove that he cannot, in fact, perform that work.[8]

The court considers on appeal whether the Commissioner's final decision is supported by substantial evidence and whether the Commissioner used the correct legal standard. Crowley v. Apfel, 197 F.3d 194, 196 (5th Cir. 1999); citing Austin v. Shalala, 994 F.2d 1170 (5th Cir. 1993); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). The court has the responsibility to scrutinize the entire record to determine whether the ALJ's decision was supported by substantial evidence and whether the proper legal standards were applied in reviewing the claim. Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983). The court has limited power of review and may not reweigh the evidence or substitute its judgment for that of the Commissioner, [9] even if it finds that the evidence leans against the Commissioner's decision.[10] The Fifth Circuit has held that 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." Crowley v. Apfel, 197 F.3d 194, 197 (5th Cir. 1999) (citation omitted). Conflicts in the evidence are for the Commissioner to decide, and if there is substantial evidence to support the decision, it must be affirmed even if there is evidence on the other side. Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The court's inquiry is whether the record, as a whole, provides sufficient evidence that would allow a reasonable mind to accept the conclusions of the ALJ. Richardson v. Perales, 402 U.S. 389, 401 (1971). "If supported by substantial evidence, the decision of the [Commissioner] is conclusive and must be affirmed." Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994), citing Richardson v. Perales, 402 U.S. 389, 390, 28 L.Ed.2d 842 (1971).


Plaintiff contends on appeal that the ALJ erred in not finding plaintiff disabled under Medical-Vocational Rule 202.06 contained in 20 C.F.R. Part 404, Subpart P, App. 2 (" Medical-Vocational Rule "). Docket 10. p. 15. The ALJ first erred when he concluded that plaintiff was capable of performing work at all exertional levels instead of, at most, light work. The medical evidence does not support a finding that plaintiff is capable of performing work at all exertional levels. There is no medical opinion that plaintiff can perform work at all levels, but ...

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