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Welch v. Colvin

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

April 15, 2015



S. ALLAN ALEXANDER, Magistrate Judge.

This is an appeal under 42 U.S.C. § 405(g) for judicial review of the Commissioner of Social Security's decision denying plaintiff Barbara Ann Welch's application for a period of disability (POD) and disability insurance benefits (DIB) under Title II of the Social Security Act. Plaintiff filed an application for DIB on February 17, 2012, originally alleging disability beginning October 30, 2009 and later amended that date to January 13, 2012. Docket 10, p. 132, 219-21. The agency denied her application initially on and upon reconsideration. Docket 10, p. 80-83, 85-87. Plaintiff then requested a hearing, which an Administrative Law Judge ("ALJ") held on September 16, 2013. Docket 10, p. 31-51. The ALJ issued an unfavorable decision on December 16, 2013 (Docket 10, p. 19-29), and the Appeals Council denied plaintiff's request for a review on May 19, 2014, Docket 10, p. 1. Plaintiff timely filed this appeal from the decision, and it is now ripe for review. Because both parties consented to have a magistrate judge conduct all 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 March 23, 1964 and was 47 to 49 years old during the adjudication period (January 13, 2012 through December 16, 2013). Docket 10, p. 34, 45. She graduated from high school, completed one year of college, and attended additional schooling to become a certified nurse's assistant. Docket 10, pp. 38-39. She was previously employed as a certified nurse's assistant and a machine operator. Docket 10, pp. 38-39, 47, 157-158. Plaintiff alleged she was unable to work after her onset date due to various impairments however, upon review the plaintiff has asserted error only regarding her claim of depression. Docket 10, p. 152, p. 138, 147, 165, 179.

In evaluating the plaintiff's disability claim, the ALJ proceeded through the Social Security Administration's five-step sequential evaluation process. 20 C.F.R. 404.1520(a); see also Docket 10, p. 12-30. Within that process, the ALJ determined that the claimant meets the insured status requirements of the Social Security Act through December 31, 2014 and has not engaged in substantial gainful activity since the alleged onset date. Docket 10, p. 17. Also, the ALJ determined that plaintiff suffered from the severe impairment of depression. Docket 10, p. 17. However, in light of medical treatment records and testimony, the ALJ concluded that the claimant's impairment did not meet or medically equal the severity of a listed impairment, most notably Listing 12.04. Docket 10, p. 18-20.

The plaintiff asserts the ALJ failed to apply proper legal standards when she improperly weighed the opinions of the plaintiff's treating psychiatrist and a consultative psychologist. Docket 13, 16. The plaintiff also asserts that the ALJ erred in relying on improper vocational expert testimony. Docket 13, 16.


In determining disability, the Commissioner, through the ALJ, works through a five-step sequential evaluation process. See 20 C.F.R. § 404.1520. The burden rests upon plaintiff throughout the first four steps of this process to prove disability and if plaintiff is successful in sustaining her burden at each of the first four levels, the burden then shifts to the Commissioner at step five. See Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999). First, plaintiff must prove she is not currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). Second, the plaintiff must prove her impairment(s) are "severe" in that they "significantly limit [her] physical or mental ability to do basic work activities...." 20 C.F.R. § 404.1520(c). 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). 20 C.F.R. § 404.1520(d). If plaintiff does not meet this burden, at step four she must prove she is incapable of meeting the physical and mental demands of her past relevant work. 20 C.F.R. § 404.1520(e). 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. 20 C.F.R § 404.1520(g). 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. See Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991).


The court considers on appeal whether the Commissioner's final decision is supported by substantial evidence and whether the Commissioner used the proper legal standards. Crowley, 197 F.3d at 196, citing Austin v. Shalala, 994 F.2d 1170 (5th Cir. 1993); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). In making that determination, the court has the responsibility to scrutinize the entire record. Ransom v. Heckler, 715 F.2d 989, 992 (5 th Cir. 1983). The court has limited power of review and may not reweigh the evidence or substitute its judgment for that of the Commissioner, Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988), even if it finds the evidence leans against the Commissioner's decision. See Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); see also Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988).

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, 197 F.3d at 197 (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). However, an ALJ "is not at liberty to make a medical judgment regarding the ability or disability of a claimant... where such inference is not warranted by clinical findings. Loza v. Apfel, 219 F.3d 378, 395 (5th Cir. 2000). The court's inquiry is whether the record, as a whole, provides sufficient evidence that would allow a reasonable mind to accept the ALJ's conclusions. See Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Crowley, 197 F.3d at 197. "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, 402 U.S. at 390.


Plaintiff argues on appeal that the ALJ erred by not affording proper weight to the opinions of both her treating psychiatrist, Dr. Anthony Jackson, and a DDS-requested consultative psychologist, Dr. Brian Thomas in violation of 20 C.F.R. § 404.1527. Docket 13, 16. Specifically, the plaintiff cites that the ALJ afforded the most weight to a Mental Residual Functional Capacity Assessment form completed by a non-examining state agency consultant, Dr. Glenda Scallorn, roughly a year and a half before the ALJ hearing rather than a comparable examining consultative report or a treating source's opinion. Docket 13, 16.

The Commissioner responds that the ALJ's decisions regarding weight given to the doctors' opinions were substantially justified. First, says the Commissioner, Dr. Jackson's opinion should not be afforded the usual deference given to treating physicians because he "did not appear to have personally treated Plaintiff, but rather succeeded Plaintiff's treating psychiatrist at Communicare." Docket 15, p. 12. With regard to Dr. Thomas, the Commissioner argues the ALJ did not reject his opinion entirely and notes that ...

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