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Hyman v. Colvin

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

November 12, 2014

ROSEMARY LAND HYMAN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

LINDA R. ANDERSON, Magistrate Judge.

This cause is before the undersigned for a report and recommendation as to Plaintiff's Motion for Reversal and/or Remand [12] and Defendant's Motion for an Order Affirming the Decision of the Commissioner [15]. Having considered the record in this matter, the undersigned recommends that Plaintiff's motion be denied and Defendant's motion be granted.

HISTORY

Plaintiff's application for social security disability and disability insurance benefits was denied initially and upon reconsideration, as well as denied by an Administrative Law Judge (ALJ) on March 27, 2012, and the Appeals Council on May 3, 2013. [11] at 5, 32. Plaintiff was 48 years old at the time of the hearing before the ALJ, making her a "younger" person for social security purposes. Plaintiff has a high school education, and before claiming to be disabled, worked as a loan officer and collection clerk. [11] at 30.

Following the applicable five-step analysis, [1] the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date of February 8, 2008 (step 1), and had severe impairments of severe migraines, high blood pressure, chronic back pain, GERD, history of TIA, vision problems and obesity (step 2). The ALJ concluded that Plaintiff's impairments were not as severe as any impairment listed as presumptively disabling in the applicable regulations (step 3). The ALJ then determined that Plaintiff retained the residual functional capacity (RFC) to perform sedentary work, "except involving work that does not require 20/20 visual acuity, and because of periodic headaches is limited to simple, routine, repetitive tasks, and dealing with objects rather than data or people." [11] at 26. The ALJ determined that Plaintiff was unable to return to her past relevant work (step 4). Id. at 30. At step 5, utilizing the testimony of a vocational expert (VE), the ALJ determined that Plaintiff was capable of performing other work and therefore not disabled. [11] at 31-32.

STANDARD OF REVIEW

When considering social security appeals, this Court's review is limited to determining whether substantial evidence supports the findings made by the Social Security Administration and whether the correct legal standards were applied. 42 U.S.C. ยง 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Adler v. Astrue, 501 F.3d 446, 447 (5th Cir. 2007). Substantial evidence has been defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)). The Fifth Circuit has further held that substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but no substantial evidence' will be found only where there is a conspicuous absence of credible choices' or no contrary medical evidence.'" Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)). Conflicts in the evidence are for the Commissioner to decide, and if substantial evidence is found to support the decision, the decision 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 may not reweigh the evidence, try the case de novo, or substitute its own judgment for that of the Commissioner even if it finds that the evidence preponderates against the Commissioner's decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988); Harrell, 862 F.2d at 475. If the Commissioner's decision is supported by the evidence, then it is conclusive and must be upheld.

THE ISSUES PRESENTED

1. Treating Physician's Opinion

Plaintiff first contends that the ALJ committed reversible error in not affording controlling weight to the opinion of her treating physician, Dr. McCloud, and by not providing good cause for rejecting that opinion. [13] at 9. Plaintiff also argues that Dr. McCloud's is the only function-by-function medical assessment in the record and therefore must be accepted as to Plaintiff's RFC.

Plaintiff was seen once by Dr. McCloud, a family practitioner, in March of 2010. [11] at 44. In November 2010, Dr. McCloud provided a medical source statement opining that Plaintiff's pain would be distracting to performance of adequate work activity. [11] at 285-286. Dr. McCloud further opined that the side effects of Plaintiff's medications would limit her effectiveness. Id. The ALJ addressed Dr. McCloud's treatment and statement:

North Hills Family Medicine Clinic records show that she was seen by Miyako McCloud, M.D. on March 24, 2010 for a complaint of low back pain and requesting medication refills. She reported at that time that the duration of her back pain was 4 or 5 days. Her pain level was reported as moderate and to interfere with sleep, work, and household chores. On examination she was found to have mild to moderate tenderness of the lumbar spine, and her blood pressure was 140/90. Lumbar spine x-rays performed on that date showed the spinal curvature to be normal, intervertebral and articular spaces of normal diameter, articular surfaces were smooth and showed no evidence of eburnation, there was no evidence of spurring articularly or posteriorly into the neural foramina, neural foramina were of normal diameter and showed no evidence of encroachment or foreign body, bone texture was essentially normal, and the paravertebral soft tissues shadows were normal.
....
On November 9, 2010, Dr. McCloud reported that she had pain to such an extent as to be distracting to adequate performance of daily activities or work, and that greatly increased to such degree as to cause distraction from tasks or total abandonment of task with physical activity such as walking, standing, sitting, bending, stooping, moving of extremities, etc. It was also indicated that drug side effects could be expected to be severe and to limit effectiveness due to distraction, inattention, drowsiness, etc. Dr. McCloud reported limitations of lifting/carrying 10 pounds occasionally and 5 pounds frequently; sitting 2 hours; no standing or walking; not required to use an assistive device; no pushing and pulling movement (arm and/or leg controls); no working with or around hazardous machinery; rarely climbing, gross manipulation, bending and/or stooping movements, reaching, or operating motor ...

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