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Ware v. Colvin

United States District Court, N.D. Mississippi, Eastern Division

December 3, 2014

TERESA WARE, Plaintiff,


S. ALLAN ALEXANDER, Magistrate Judge.

Plaintiff Teresa Ware seeks judicial review under 42 U.S.C. § 405(g) of a decision by the Commissioner of Social Security denying her application for Supplemental Security Income (SSI) under Title XVI of the Social Security Act. Docket 10, p. 67-77. Ware filed her application on September 27, 2011, asserting an onset date of February 1, 2011. Docket 10, p. 67. The Commissioner denied her claim initially and on reconsideration. Docket 10, pp. 30-33, 36-37. Plaintiff challenged the denial of benefits and requested a hearing before an Administrative Law Judge (ALJ). Docket 10, pp. 38. She was represented by an attorney at the administrative hearing on July 23, 2013. Docket 10, p. 257. The ALJ issued an unfavorable decision on September 23, 2013. Docket 10, p. 15-25. The Appeals Council denied her request for review. Docket 10, p. 6-10. 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 November 7, 1972 and was forty years old on the date of the hearing before the ALJ. Docket 10, p. 262. She dropped out of school in the 8th grade. Docket 10, p. 263. She was previously employed as a grill cook. Docket 10, pp. 104, 288. She claims disability from asthma, high blood pressure, back problems, arthritis, and panic attacks. Docket 10, pp. 104, 288.

The ALJ determined that plaintiff suffers from "severe" impairments of obesity and arthritis. Docket 10, pp. 15-17. Despite finding she had these severe impairments, the ALJ determined that plaintiff does not have an impairment 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. Docket 10, p. 17, Finding No. 3. The ALJ examined the evidence in the record, including the records and opinions of the consultative examiner Dr. Robert Shearin, hospital records, and medical records from the Aaron Henry Community Health Clinic, mental health professional Dr. Pamela Buck and non-examining state agency consultant Dr. Robert Culpepper. This evidence, along with the plaintiff's testimony and an adult function report completed by the plaintiff, led the ALJ to conclude that plaintiff's residual functional capacity [RFC] includes:

the residual functional capacity to lift or carry ten pounds occasionally, less that ten pounds frequently; stand or walk for two hours out of an eight-hour work day; and sit for six hours out of an eight-hour workday. The claimant may never climb ladders, ropes, or scaffolds; but may occasionally climb ramps or stairs; occasionally stoop, crouch, kneel, or crawl; and must avoid concentrated exposure to environmental irritants.

Docket 10, p. 17, Finding No. 4. In reaching this RFC decision the ALJ found the plaintiff's subjective complaints less than fully credible and that her allegations of stringent functional limitations were disproportionate to the objective medical evidence. Docket 10, pp. 19-21.

The ALJ found that even though this RFC left plaintiff unable to perform her past relevant work [Docket10, p. 21, Finding No. 5], in light of testimony from a vocational expert (VE) and plaintiff's age, education, work experience and RFC, jobs exist in significant numbers in the national economy that plaintiff could perform, including charge account clerk, DOT number 205-number 713.687-026. Docket 10, p. 24, Finding No. 9.

Plaintiff now appeals to this court. She contends the ALJ's RFC for plaintiff is not supported by substantial evidence because the ALJ did not properly evaluate plaintiff's asthma, or her obesity or the medical source statement from Dr. Robert Shearin, M.D. In addition, plaintiff argues that the ALJ was required to make a separate finding regarding whether the plaintiff was capable of maintaining work. Docket 16.


In determining disability, the Commissioner, through the ALJ, works through a five-step sequential evaluation process.[1] 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.[2] First, plaintiff must prove she is not currently engaged in substantial gainful activity.[3] Second, plaintiff must prove her impairment is "severe" in that it "significantly limits [her] physical or mental ability to do basic work activities...."[4] 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).[5] 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.[6] 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.[7] 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.[8]

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, [9] even if it finds that the evidence leans against the Commissioner's decision.[10] 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. Evaluation of ...

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