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Marshall v. Colvin

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

February 10, 2014



LINDA R. ANDERSON, Magistrate Judge.

Derrique Marshall, proceeding pro se, appeals the final decision denying his application for child insurance benefits and Supplemental Security Income ("SSI"). The Commissioner requests an order pursuant to 42 U.S.C. § 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 for the reasons that follow.

Factual and Procedural Background

On February 8, 2006, Marshall filed pro se applications alleging he became disabled on that same date due to depression and a learning disability. He has a ninth grade education and was approximately 20 years old at the time of filing, with previous work experience as a material-handler, automobile-detailer, and fast-food worker. On October 25, 2007, Administrative Law Judge Willie L. Rose issued an unfavorable decision and Marshall appealed the denial. Although his request for review was not timely filed, the Appeals Council found good cause for the late filing and granted Marshall's request for review. On November 19, 2010, the Appeals Council vacated the ALJ's decision and remanded the case with instructions to obtain additional evidence concerning Plaintiff's depression and possible learning disorder; and, if warranted, the following: (1) "a consultative psychological examination with psychological testing and medical source statement about what the claimant can still do despite the impairments;" and, (2) vocational expert testimony "to clarify the effect of the assessed limitations on his occupational base." The ALJ was also instructed to further evaluate the Plaintiff's mental impairments in accordance with 20 C.F.R. § §1520(a) and 416.920(a), and to "[g]ive further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations." In compliance with the remand order, ALJ Rose obtained and considered the additional evidence, including additional medical records submitted by Plaintiff, who was now represented by counsel. A second unfavorable decision was issued on September 13, 2011, and Plaintiff appealed the denial. The Appeals Council denied Plaintiff's second request for review and he now appeals that decision pro se. [1]

After reviewing the evidence, the ALJ concluded that Plaintiff was not disabled under the Social Security Act. In accordance with 20 C.F.R. § §1520(a) and 416.920(a), at step one of the five-step sequential evaluation, [2] the ALJ found that Plaintiff has not engaged in substantial gainful activity since his alleged onset date. At steps two and three, the ALJ found that although Plaintiff's borderline intelligence and depressive disorders were severe, they did not singly or in combination, meet or medically equal any listing. At step four, the ALJ found that Plaintiff could perform his past relevant work as a materialhandler, automobile-detailer, and fast-food worker. Alternatively, the ALJ found that Plaintiff also had the residual functional capacity to:

perform a full range of work at all exertional levels but with the following non-exertional limitations: he can understand and remember simple instructions and carry out simple tasks. He can interact with supervisors and co-workers on an occasional basis without interruption.[3]

Based on vocational expert testimony at step five, the ALJ concluded that given Plaintiff's age, education, work experience, and residual functional capacity, he could perform work as a hand-packager in addition to his past work.

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).


Plaintiff does not assert any specific assignments of error on appeal, but cites to various portions of the record to support his disability claims. Liberally construed, Plaintiff essentially maintains that he is entitled to disability benefits because he gets depressed and has a learning disability which makes it difficult for him to comprehend or understand things. As evidence in support, he states that he failed three grades while in school and was unsuccessful in his attempts to obtain a GED. He also asserts that he requires constant reminders and needs assistance to make decisions. In addition to these mental impairments, Plaintiff maintains that he has difficulty walking and standing due to a callous buildup and a clubfoot.[4] The undersigned, having carefully considered each of these and other arguments raised by Plaintiff on appeal, finds substantial evidence supports the denial of benefits in this case.

Applying the severity standards set forth in Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985) and 20 C.F.R. § 416.920(c), the ALJ concluded that Plaintiff's borderline intelligence and depressive disorders were his only severe impairments.[5] Although Plaintiff testified that he experiences pain when standing and walking, the objective medical evidence did not establish any severe physical impairments. Plaintiff acknowledges that he underwent corrective foot surgery when he was an infant, and while he maintains that his legs are now uneven, the record is devoid of any medical treatment for this or any other physical impairment. The mere presence of some impairment is insufficient to establish a severe impairment or disability. Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983). "An impairment is severe if it significantly limits an individual's physical or mental abilities to do basic work activities; it is not severe if it is a slight abnormality... that has no more than a minimal effect on the claimant's ability to do basic work activities." Brunson v. Astrue, 387 F.Appx. 459, 461 (5th Cir. 2010) (citing Stone, 752 F.2d at 1101).

In addition to Stone, the ALJ applied the psychiatric review technique required by 20 C.F.R. § 1520a(d)(1), and concluded that Plaintiff's depression produced only mild limitations in his daily activities and social functioning, and moderate limitations in his concentration, persistence, and pace with no episodes of decompensation of extended duration. 20 C.F.R. § 1520(a). These findings are substantially supported by consultive psychological examinations, medical source statements, Plaintiff's testimony, and his treatment records.

In a consultative psychiatric examination performed in April 2006, Dr. Buren Smith found no evidence that Plaintiff had functional limitations secondary to any psychiatric condition. During the examination, Plaintiff advised Dr. Smith that he had a tenth grade education and was enrolled in regular classes while in school. Plaintiff's only reported psychiatric treatment up to that point was a one-year Ritalin prescription when he was approximately five-years old for attention deficit hyperactivity disorder. He had not received any formal psychiatric treatment or medications since that time, and had no psychiatric complaints during the examination. Plaintiff also ...

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