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Boleware v. Colvin

United States District Court, S.D. Mississippi, Northern Division

January 27, 2014

DAVID ESTUS BOLEWARE, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

LINDA R. ANDERSON, Magistrate Judge.

David Boleware appeals the final decision denying his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The Commissioner requests an order pursuant to 42 U.S.C. ยง 405(g), affirming the final decision of the Administrative Law Judge. Having carefully considered the hearing transcript, the medical records in evidence, and all the applicable law, the undersigned recommends that the decision be affirmed.

Factual and Procedural Background

On October 30, 2009, Boleware filed applications for SSI and DIB, alleging he became disabled on November 30, 2008, due to rheumatoid arthritis, a torn rotator cuff, depression, and pain in his back and right hip. He is a high-school graduate with over 30 years of work experience as a carpenter, and was approximately 51 years old at the time of filing. The applications were denied initially and on reconsideration. Boleware appealed the denial and on April 29, 2011, Administrative Law Judge Nancy L. Brock ("ALJ") rendered an unfavorable decision finding that Plaintiff had not established a disability within the meaning of the Social Security Act. The Appeals Council denied Plaintiff's request for review. He now appeals that decision.

Upon reviewing the evidence, the ALJ concluded that Plaintiff was not disabled under the Social Security Act. At step one of the five-step sequential evaluation, [1] the ALJ declined to make a definitive finding, noting that Plaintiff continues to do occasional carpentry work and may have engaged in substantial gainful activity since his alleged onset date. At steps two and three, the ALJ found that although Plaintiff's arthritis of multiple joints was a severe impairment, it did not meet or medically equal any listing. At step four, the ALJ found that Plaintiff had the residual functional capacity to perform light work except he should not perform constant repetitive movements. Based on vocational expert testimony, the ALJ concluded that given Plaintiff's age, education, work experience, and residual functional capacity, he could perform work as a tickettaker, gate-tender, and marker/labeler.

Standard of Review

Judicial review in social security appeals is limited to two basic inquiries: "(1) whether there is substantial evidence in the record to support the [ALJ's] decision; and (2) whether the decision comports with relevant legal standards." Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996) (citing Carrier v. Sullivan, 944 F.2d 243, 245 (5th Cir. 1991)). Evidence is substantial if it is "relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion; it must be more than a scintilla, but it need not be a preponderance." Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995) (quoting Anthony v. Sullivan, 954 F.2d at 295 (5th Cir. 1992)). This Court may not re-weigh the evidence, try the case de novo, or substitute its judgment for that of the ALJ, even if it finds evidence that preponderates against the ALJ's decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994).

Discussion

Boleware alleges that the Commissioner's decision should be reversed or alternatively remanded because the ALJ failed to apply the correct legal standards in determining both his credibility and residual functional capacity. The Court rejects these arguments for the reasons that follow.

1. Substantial evidence supports the ALJ's credibility determination.

Boleware effectively argues in his first assignment of error that the ALJ's adverse credibility determination is not supported by substantial evidence because she failed to conduct a thorough evaluation of his physical impairments in compliance with Social Security Ruling 96-7p.

SSR 96-7p requires the ALJ to engage in a two-step process. In the first step, the ALJ must consider whether there is an "underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce the individual's pain or other symptoms." SSR 96-7p, 1996 WL 374186, at * 2. In the second step, the ALJ "must evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's ability to do basic work activities." Id. He should consider Plaintiff's daily activities, symptoms, factors that precipitate and aggravate those symptoms, medication and side effects, types of treatment, and functional limitations. Id. at *3.

In compliance with SSR 96-7p here, the ALJ indicated that after careful consideration, she found Plaintiff's medically determinable impairments could reasonably be expected to produce some of his alleged symptoms, but his testimony regarding the intensity, persistence, and limiting effects were not fully credible. Whenever statements about the intensity, persistence or limiting effects of symptoms are not substantiated by objective medical evidence, the ALJ has the discretion to make a finding on the credibility of the statements and the determination is entitled to considerable deference. Foster v. Astrue, 277 F.Appx. 462 (5th Cir. 2008); see also Gonzales v. Astrue, 231 F.Appx. 322 (5th Cir. 2007) (adverse credibility determination made by an ALJ was supported by inconsistencies between claimant's testimony and documentary evidence). Substantial evidence supports the ALJ's credibility assessment in this case.

Boleware testified that while he continues to do carpentry work approximately one week per month, it is considerably less than before because of his physical impairments. For years, he has experienced pain somewhere in his body, which his primary care physician suspects is due to rheumatoid arthritis. His shoulder pain was reportedly so bad in November 2008 that Plaintiff testified that he could not handle the work anymore. He also has radiating pain mostly in his right hip, and pain in his arms, knees, and back. He no longer walks for exercise and cannot do "anything repetitive like bending over" or hammering. He also cannot stand or sit for longer than an hour at a time before experiencing discomfort or pain. Despite his pain, Plaintiff testified that he ...


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