United States District Court, N.D. Mississippi, Delta Division
LINDA R. PROGE, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
S. ALLAN ALEXANDER, Magistrate Judge.
This is an action under 42 U.S.C. § 405(g) for judicial review of the decision of the Commissioner of Social Security denying the applications of plaintiff Linda R. Proge for period of disability (POD), disability insurance benefits (DIB) under Sections 216(I) and 223 of the Social Security Act and for Supplemental Security Income (SSI) under Title XVI. Docket 1. Proge filed her applications on August 26, 2010, alleging disability beginning June 30, 2010. Docket 11, pp. 123-124, 125-126, 127-128. The Commissioner denied her claim initially and on reconsideration; plaintiff challenged the denial of benefits and filed a request for a hearing before an Administrative Law Judge (ALJ). Docket 11, p. 58-61. She had a representative at the administrative hearing on July 2, 2012. Docket 11, pp. 25-53. The ALJ issued an unfavorable decision on September 20, 2012 [Docket 11, pp. 8-20], and the Appeals Council denied her request for review. Docket 11, p. 1-6. Plaintiff filed the instant appeal, and it is now ripe for review. Because both parties have consented to have a magistrate judge conduct all the proceedings in this case under 28 U.S.C. § 636(c), the undersigned has the authority to issue this opinion and the accompanying final judgment.
Plaintiff was born on September 25, 1964 and was forty-seven years old on the date of the ALJ's hearing decision. Docket 11, p. 30. She has a high school education. Id. She was previously employed as a material handler, machine operator#2, order filler/puller, forklift operator and box maker. Docket 11, pp. 23, 153. She claimed disability due to "[carpal tunnel] surgery on both hands, shoulder problems [and] can't grip with hands" Docket 11, pp. 152.
The ALJ determined that plaintiff suffers from "severe" impairments of "status post bilateral carpal tunnel release with continued wrist pain and torn right rotator cuff" but she does not have impairments or a combination of impairments that meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). Docket 11, p. 13-17, Finding Nos. 3& 4. Relying on the evidence in the record, the ALJ concluded that plaintiff retained the RFC to "occasionally lift/carry up to ten pounds, frequently lift/carry up to five pounds, walk/stand for six hours in an eight hour work day, and sit for six hours in an eight hour work day. The claimant could occasionally climb. In addition, she could frequently balance, stoop, kneel, crawl, finger, handle and reach. The claimant can occasionally work around heights, frequently work around moving machinery, and frequently drive." Docket 11, p. 17, Finding No. 5. The ALJ found the plaintiff's subjective complaints less than fully credible and that her allegations of stringent functional limitations were greatly disproportionate to the objective medical evidence. Id at 17-18.
Relying upon the testimony of a vocational expert ("VE"), the ALJ found that plaintiff's "severe" impairments prevented her from returning successfully to her past relevant work. Docket 11, p. 19, Finding No. 6. Nevertheless, considering the plaintiff's age, education, work experience and RFC, the ALJ determined that there are jobs that exist in significant number in the national economy that the plaintiff is able to perform [Docket 11. p. 19, Finding No. 10], including laminator #1, bench hand assembler, or final assembler. Id. at 20. Accordingly, the ALJ determined that the plaintiff is not under a disability as defined by the Social Security Act. Docket 11, p. 20, Finding No. 11.
The plaintiff requested review of the decision by the Appeals Council. Docket 11, p. 7. After reviewing the record, including the request for review submitted by counsel for the plaintiff, the Appeals Council denied plaintiff's request for review because the information did not provide a basis for changing the ALJ's decision. Id at 1-5. Plaintiff now appeals to this court claiming that the ALJ erred by (1) not giving proper weight to plaintiff's treating physician's RFC, (2) not assigning weight to the opinions of Dr. Natarajan and Dr. Dalal, and (3) drawing negative inferences from plaintiff's failure to seek medical treatment or her refusal to have surgery for her shoulder. Docket 17.
II. STANDARD OF REVIEW
In determining disability, the Commissioner, through the ALJ, works through a five-step sequential evaluation process. 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 her burden at each of the first four levels, then the burden shifts to the Commissioner at step five. First, plaintiff must prove she is not currently engaged in substantial gainful activity. Second, plaintiff must prove her impairment is "severe" in that it "significantly limits [her] physical or mental ability to do basic work activities...." At step three, the ALJ must conclude plaintiff is disabled if she proves that her 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). If plaintiff does not meet this burden, at step four she must prove that she is incapable of meeting the physical and mental demands of her past relevant work. At step five, the burden shifts to the Commissioner to prove, considering plaintiff's residual functional capacity, age, education and past work experience, that she is capable of performing other work. If the Commissioner proves other work exists which plaintiff can perform, plaintiff is given the chance to prove that she cannot, in fact, perform that work.
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). It is the court's responsibility to scrutinize the entire record to determine whether the ALJ's decision was supported by substantial evidence and whether the Commissioner applied the proper legal standards 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 re-weigh the evidence or substitute its judgment for that of the Commissioner,  even if it finds that the evidence leans against the Commissioner's decision. In the Fifth Circuit 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 proper 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).
1. ALJ's assignment of "little weight" to Dr. Varner's opinion
In his decision, the ALJ references plaintiff's carpal tunnel syndrome and DeQuervain's release of both wrists in 2007, before plaintiff's alleged onset date. Docket 11, p. 14. He notes that she reached maximum medical improvement and was released from her doctor's care in August 2007. Id. With regard to Dr. Varner's opinion, the ALJ states,
After a prolonged absence of nearly four years, the claimant resumed medical treatment with Dr. James Varner, the physician who previously performed her carpal tunnel procedures, in February 2011. Dr. Varner noted that the claimant worked as a forklift operator for the past two years. His treatment notes refer to minimal wrist swelling and mild digital numbness without neurological deficits. He also found that the claimant could make a full fist without difficulty and the results of her Tinel's and Phalen's exams were negative. Through the course of his examinations, the doctor ...