URSULA C. STATEN, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
JOHN M. ROPER, Senior Magistrate Judge.
Plaintiff, Ursula C. Staten ("Staten") filed a  Complaint on April 24, 2012 for judicial review of Defendant Commissioner of Social Security's ("Commissioner") denial of Staten's application for disability benefits under the Social Security Act. Before the Court is Staten's  Response to Order Directing the Filing of Briefs requesting that the Court reverse the decision of the Commissioner and remand the matter to the Administrative Law Judge (ALJ) for further consideration. The Government has filed a Memorandum in Opposition to Plaintiff's Response to Order  and Plaintiff has filed a Response to the Memorandum in Opposition .
On August 18, 2010, Staten filed her application for a period of disability and disability insurance benefits asserting that she had become disabled since April 1, 2008 [13-1, pp.78-80, 204]. On August 23, 2011, the Administrative Law Judge ("ALJ") issued a decision denying Plaintiff's applications [13-1, pp.22-32] and Plaintiff's Request for Review was subsequently denied by the Appeal Council [13-1, pp. 7-10]. The Court finds that Plaintiff has exhausted her administrative remedies and has timely filed this action in this Court. The matter is ripe for review under 42 U.S.C.§§405(g), 1383(c)(3).
Staten was 53 years old at the time of the ALJ's determination [13-1, pp.31]. She has a high school education and has attended a few years of college [13-1, p.42.] Her past relevant work experience is as a lead baker and massage therapist [13-1, pp. 43-46]. She has alleged disability beginning on April 1, 2008 because of degenerative disc disease, anxiety, asthma, arthritis, and arm pain [13-1, p. 204].
The ALJ found that Plaintiff had severe impairments of obesity, cervical disease, anxiety, depression and personalty disorder [13-1, p.25]. The ALJ further found that she could not perform her past relevant work as a baker or massage therapist [13-1, p.31]. However, the ALJ concluded that the Plaintiff retained the residual functional capacity ("RFC") to perform light work with certain delineated exceptions. The ALJ relied on the testimony of Kelly Hutchins, a vocational expert, ("VE") to determine that the Plaintiff could perform other work with her limitations existing in significant numbers in the national economy [13-1, pp.31-32, 60-61]. Thus, the ALJ determined that the Plaintiff was not disabled [13, p.32]. The federal courts review the Commissioner's denial of social security benefits only to ascertain whether (1) the final decision is supported by substantial evidence and (2) the Commissioner used the proper legal standards to evaluate the evidence. Newton v. Apfel, 109 F.3d 448, 452 (5th Cir. 2000) (citing Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999)). "If the Commissioner's findings are supported by substantial evidence, they must be affirmed." Id. (citing Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995)). "Substantial evidence is such relevant evidence as a reasonable mind might accept to support a conclusion. It is more than a mere scintilla and less than a preponderance." Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); see also Fraga v. Bowen, 810 F.2d 1296, 1302 (5th Cir. 1987). The court does not re-weigh the evidence in the record, try the issues de novo, or substitute its judgment for the Commissioners, even if the evidence preponderates against the Commissioner's decision. Brown, 192 F.3d at 496. "Conflicts in the evidence are for the [Commissioner] and not the courts to resolve." Id. (quoting Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990)).
Plaintiff has the ultimate burden of proving she is entitled to benefits. Masterson v. Barnhart, 309 F.3d 267, 271 (5th Cir. 2002). To meet this burden, Plaintiff must provide competent evidence to authenticate a medical or psychological condition that prevents her from engaging in substantial gainful work activity. 20 C.F.R. § 404.1512(a) (2012). Here, the ALJ found that Plaintiff could not return to her past relevant work as a lead baker or massage therapist [13-1, p.31].
Once Plaintiff established that she was unable to return to her former occupation, the burden shifts to the Commissioner to show that there was other gainful employment the claimant is capable of performing in spite of her existing impairments. Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999). The burden, then, shifts back to the Plaintiff to prove she "in fact cannot perform the alternate work in order to be found disabled. " Id. The Court finds Plaintiff has not sustained her burden.
After determining Plaintiff was unable to perform a full range of light work activity, the ALJ obtained VE testimony to determine if Plaintiff could obtain employment [13-1, pp. 59-61); Carey v. Apfel, 230 F.3d 131, 145 (5th Cir.2000). The ALJ asked the VE what type of position could a hypothetical individual of Plaintiff's age, education, and work experience with the functional limitations consistent with Plaintiff's RFC obtain [13-1, pp. 59-61]. The VE responded that the hypothetical individual could perform the jobs of bench assembler, linen folder, and mail sorter, with 3, 900 such jobs in Mississippi and more than 400, 000 such jobs in the national economy[ 13-1, pp. 59-61].
The ALJ, after consideration of the VE's testimony and the record, determined that there were jobs existing in significant numbers in the national economy that Plaintiff could perform given her RFC [13-1, pp. 31-32, 59-61]. The ALJ must incorporate all of a claimant's limitations and the claimant must be afforded the opportunity to correct deficiencies in the ALJ's questions. Boyd v. Apfel, 239 F.3d 698, 707-08 (5th Cir.2001) Cir. 2001) (citing Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994)). The hypothetical question in this case incorporated limitations consistent with those in the ALJ's RFC finding and Plaintiff's representative had the opportunity to cross-examine the VE and address any shortcomings in the ALJ's hypothetical question [13-1 at 59-63]. Accordingly, the Court finds the VE's testimony constitutes substantial evidence in support of the ALJ's findings that Plaintiff could perform other work and she was not disabled.
On appeal, Plaintiff challenges whether the ALJ (1) properly considered opinions from her treating sources, (2) properly evaluated her subjective complaints of pain and other symptoms, (3) properly relied on the VE's testimony to find Plaintiff could perform work existing in significant numbers in the national economy, and (4) provided Plaintiff a full and fair hearing .
Plaintiff contends the ALJ did not properly consider reports from her treating sources . The opinion of a treating physician who is familiar with a claimant's medical condition should generally be accorded considerable weight in determining disability. Perez v. Barnhart, 415 F.3d 457, 465-66 (5th Cir. 2005). In fact, a treating physician's opinion may even be 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). However, the ALJ is free to assign little or no weight to the opinion of any physician, even a treating source, for good cause Id. Good cause arises where statements are brief and conclusory, not supported by medically acceptable clinical laboratory diagnostic techniques, or otherwise unsupported by the evidence. Perez, 415 F.3d at 466; Newton, 209 F.3d at 456. Consequently, treating physicians' opinions are not only not conclusive in disability claims, Perez, 415 F.3d at 466, but may be rejected when the evidence supports a contrary conclusion. Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995).
In this case, it does not appear that any of Plaintiff's treating physicians ever provided any opinion regarding her disability with the exception of Dr Barnes' August 25, 2011 leave of absence wherein he concluded that she could no longer be a massage therapist [13-2, p.168].
The ALJ considered the medical record presented. The record indicates that Plaintiff was hospitalized in Biloxi Regional Hospital on June 12, 2007 and discharged on June 14, 2007, her discharge diagnosis was "dysfunctional bleeding secondary to uterine fibroids and severe blood loss anemia with iron deficiency" [13-2 p.23]. Dr. Barnes concluded that the Plaintiff would be making plans for a hysterectomy [13-2, p.24 ].
Her next relevant medical record concerns a vehicular accident after which she sought treatment from Timothy Murphy for cervical radiculitis, celphalgia, cervical brachial syndrome on March 3, 2008 [13-2, p.27]. On May 5, 2008, Murphy referred her back to Dr. Barnes concluding that Plaintiff complained that the "E-stim aggravates her spinal condition. I explained to her how unusual this is based on my experience." Id.
On March 1, 2009, Plaintiff presented to the Emergency Department at Biloxi Regional Medical Center ("Biloxi Regional") with a complaint of "Shortness of breath-Hx of Asthma/COPD" [13-2, p.48]. Her clinical impression was "Asthma, Acute Exacerbation" Id. A radiological interpretation found "that her heart was not enlarged. The lungs are ...