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Fosberg v. Commissioner of Social Security

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

May 11, 2015



S. ALLAN ALEXANDER, Magistrate Judge.

Plaintiff Cristin C. Fosberg has applied for judicial review under 42 U.S.C. § 405(g) of the Commissioner of Social Security's decision denying her application for a period of disability (POD) and disability insurance benefits (DIB) under Title II of the Social Security Act. Docket 9. Plaintiff filed an application for DIB on August 31, 2012, alleging disability beginning June 9, 2012. Docket 9, p. 165-66. The agency administratively denied her application initially and upon reconsideration. Docket 9, pp. 106, 113-16. She then requested a hearing, which an Administrative Law Judge ("ALJ") conducted on March 11, 2014. Docket 9, p. 49-79. The ALJ issued an unfavorable decision on April 25, 2014 (Docket 9, p. 26-48), and the Appeals Council denied plaintiff's request for a review on July 7, 2014, Docket 9, p. 7-9. Plaintiff timely filed the instant appeal from the decision, and it is now ripe for review.

Because both parties have 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, currently 31 years old, was born September 7, 1983. Docket 9, p. 56. She completed high school and one semester of college. Docket 9, p. 57. She was previously employed as a receptionist, a secretary, a day care worker, and various other clerk-type positions including an accounting clerk. Docket 9, p. 77, 189. Plaintiff contends that she is unable to work due to diverticulitis, depression, endometriosis, pseudoseizures, interstitial cystitis, hypothyroidism, and migraine headaches. Docket 9, p. 109.

In evaluating 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 9, p. 29-41. The ALJ determined that plaintiff suffered from "severe" impairments of "migraines, pseudoseizures, cystitis, diverticulitis and gastrointestinal disorders, depression and mood disorders, and anxiety-related disorders" (Docket 9, p. 31) but ultimately found that her impairments did not meet or equal a listed impairment in 20 C.F.R. Part 404, Subpart P, App. 1 (20 C.F.R. 404.1520(d), 404.1525 and 404.1526). Docket 9, p. 32.

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, "lift, carry, push, or pull 20 lbs. occasionally and 10 lbs. frequently and to stand, sit, or walk for 6 hours of an 8-hour workday [and] can have occasional interaction with the public." Docket 9, p. 34. Upon further analysis under applicable rulings and regulations, the ALJ determined that the plaintiff was less than fully credible in describing the intensity, persistence and limiting effects of her claimed symptoms, limitations and subjective complaints. Docket 9, p. 36-40. In reaching his ultimate conclusion, the ALJ evaluated all of the evidence in the record, including hearing testimony from both the plaintiff and the VE, and held that plaintiff could perform her previous job as an accounting clerk. Docket 9, p. 40. As a result, the ALJ concluded that plaintiff is not disabled under the Social Security Act. Docket 9, p. 40-41.

On appeal, the plaintiff argues the ALJ erred in two ways: (i) by substituting his own opinion for that of medical professionals in determining the severity of plaintiff's various impairments, and (ii) by failing to accord proper weight to a consulting physician's opinion, which then led to an improper assessment of plaintiff's RFC. Docket 13.


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 to prove disability rests upon plaintiff throughout the first four steps of this process, 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, the 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 that the 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 the 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). Finally, 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).


On appeal the court must consider whether the Commissioner's final decision is supported by substantial evidence and whether the correct legal standards were used. 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 (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, 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). 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 ...

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