United States District Court, N.D. Mississippi, Oxford Division
S. ALLAN ALEXANDER, Magistrate Judge.
Plaintiff Terrill Wayne Estes has filed suit under 42 U.S.C. § 405(g) seeking judicial review of the decision of the Commissioner of Social Security denying his applications for a period of disability (POD) and disability insurance benefits (DIB) under Sections 216(I) and 223 of the Social Security Act and for supplemental security income (SSI) payments under Section 1614(a)(3) of the Act. Plaintiff protectively filed an application for benefits on February 9, 2011 alleging disability beginning on October 12, 2007. Docket 12, p. 175. His claim was denied initially on July 6, 20011, and upon reconsideration on September 2, 2011. Id. at 70-78, 88-89. He filed a request for hearing and was represented by counsel at the hearing held on November 9, 2012. Id. at 32-65. The Administrative Law Judge (ALJ) issued an unfavorable decision on December 12, 2012, and on December 27, 2013, the Appeals Council denied plaintiff's request for a review. Id. at 10-18, 1-5. Plaintiff timely filed the instant appeal from the ALJ's most recent decision, and it is now ripe for review.
Because both parties have consented to have a magistrate judge conduct all the proceedings in this case as provided in 28 U.S.C. § 636(c), the undersigned has the authority to issue this opinion and the accompanying final judgment.
Plaintiff was born on November 14, 1969 and earned his GED in 1987. Docket # 12, p. 38-39, 180. He was forty two years old at the time of the hearing. Id. at 38. Plaintiff's past relevant work was as a hand laminator, counter top installer and electric worker. Id. at 62. He contends that he became disabled before his application for benefits as a result of "anxiety, mental disorders and depression". Id. at 179.
The ALJ determined that plaintiff suffered from a "severe" impairment of "anxiety and depression" (Docket 12, p. 12), but that the impairments did not meet or equal a listed impairment in 20 C.F.R. Part 404, Subpart P, App. 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 404.920(d), 416.925 and 416.926). Id. at 13. Based upon testimony by a vocational expert [VE] at the hearing, and after considering the record as a whole, the ALJ determined that plaintiff retains the Residual Functional Capacity (RFC)
to perform a full range of work at all exertional levels but with the following nonexertional limitations; the claimant is limited to routine repetitive tasks; with no fast paced production requirements; and only occasional interaction with the public, co-workers, or supervisors....
Id. at 14. The ALJ rejected his claims of disability, concluding that even though the plaintiff had severe impairments, he could perform his past relevant work as a hand laminator, counter top installer, and electric worker. Accordingly, the ALJ ultimately held that plaintiff is not disabled under the Social Security Act. Id. at 18.
Plaintiff argues that the ALJ erred when he did not find plaintiff's physical impairments to be either severe or non-severe and properly include them in his consideration of the RFC. He also contends that the ALJ erred by not addressing plaintiff's mother's testimony or her written statement in his opinion, improperly relying on apparent gaps in plaintiff's treatment records, and ultimately reaching an erroneous conclusion that plaintiff could return to past work and actually obtain and maintain employment. Docket 18.
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 his burden at each of the first four levels, then the burden shifts to the Commissioner at step five. First, plaintiff must prove he is not currently engaged in substantial gainful activity. Second, plaintiff must prove his impairment is "severe" in that it "significantly limits [his] physical or mental ability to do basic work activities...." 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). 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. 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. 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.
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,  even if it finds that the evidence leans against the Commissioner's decision. 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 the ALJ erred by failing to find that his diabetes and high triglycerides were impairments. The Commissioner, citing 20 C.F.R. §§ 404.1513(a), 416.913(a) for the proposition that in order to "establish an impairment a claimant must provide evidence from an acceptable medical source'" [Docket 19, p. 7], responds that "[t]he ALJ properly determined that plaintiff's diabetes was not a medically determinable impairment because a nurse practitioner is not an acceptable medical source." Id. at 6. Because the plaintiff's diabetes diagnosis was made by a nurse practitioner, and nurse ...