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Slayton v. Colvin

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

May 26, 2015

NANCY SLAYTON, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM OPINION

S. ALLAN ALEXANDER, Magistrate Judge.

Plaintiff Nancy Slayton seeks judicial review under 42 U.S.C. § 405(g) of a decision of the Commissioner of Social Security denying the application of period of disability (POD) and disability insurance benefits (DIB) under Sections 216(I) and 223 of the Social Security Act. Plaintiff filed her application on December 31, 2009, alleging disability beginning May 20, 2005. Docket 9, p. 246-249. Her claim was denied initially on April 20, 2010 (Docket 9, p. 136-39) and on reconsideration. Id. at 141-43. She filed a written request for hearing on November 5, 2010 ( id. at 144) and was represented by counsel at the ten-minute hearing held on May 9, 2011. Id. at 43-56. The Administrative Law Judge (ALJ) issued an unfavorable decision on June 6, 2011 ( id. at 108-117), but the Appeals Council remanded the case to the ALJ for further review. Id. at 383-89. A new ALJ assigned to plaintiff's case held a hearing on April 17, 2013, [Docket 9, p. 57-103], and issued a second unfavorable opinion on May 29, 2013. Docket 9, p. 16. The Appeals Council denied plaintiff's request for review of he second decision on July 24, 2014. Id. at 9-13.

Plaintiff timely filed this appeal from that 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.

I. FACTS

Plaintiff was born on May 19, 1957 and is currently fifty-seven years old. Docket 9, p. 306. She obtained her GED in 1985, and her past relevant work was as a store manager and an office assistant. Id. at 93, 312, 391-93. In her application for benefits, plaintiff alleged disability due to OCD, anxiety, migraine headaches, allergies, degenerative disc disease, spurs on the bottom of her feet, depression, problems with varicose veins, acid reflux, arthritis, fibromyalgia and dry eyes. Id. at 331. The ALJ rejected her claims of disability, concluding that even though the plaintiff had severe impairments, plaintiff can perform her previous work as an office/medical assistant and store manager as well as other jobs in the national economy. Docket 9, p. 31.

Plaintiff claims that the ALJ erred because he reached an RFC that was contrary to the medical opinions of both her treating physician and the consulting examining physician, and he failed to find plaintiff disabled in light of testimony by a vocational expert [VE] which took into consideration limitations found by the treating and consulting physicians. The court finds that the ALJ improperly relied upon the opinion of a non-examining consulting physician instead of affording proper weight to the opinions of the treating and examining physicians. Finding further that an award of benefits is proper, the court remands the case for a determination of benefits.

II. STANDARD OF REVIEW

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

III. DISCUSSION

Plaintiff argues that the ALJ improperly based his RFC on an opinion which was offered by an agency physician before the date plaintiff claims as her disability onset date in this case, along with the ALJ's own lay interpretation of the medical records. In doing so, says plaintiff, the ALJ improperly discounted the opinions of her treating physician and the Commissioner's own examining physicians. Docket 13. The Commissioner counters that the ALJ's opinion that plaintiff can perform light work is supported by the record and that the treating and examining physicians' opinions are not supported by their own medical records. Docket 14.

The RFC reached by the ALJ in this case was based upon records from Dr. Naim Rahman, a consulting internal medicine physician who examined plaintiff during an earlier application for benefits - one month before her onset date for the current application, over four years before her current application for benefits and before many of her medical records had been made a part of the record. Docket 9, p. 513-17. Because her previous application for benefits was for back pain, anxiety and depression, Dr. Rahman was not examining plaintiff for the additional impairments alleged in the current application. Docket 9, p. 514. Dr. Rahman simply examined plaintiff, but did not provide either physical or mental limitations. In fact, the record does not appear to contain any opinion from any physician concerning physical limitations despite the limitations contained in the ALJ's RFC.

In contrast, both plaintiff's treating physician and Dr. James Lane, an agency examining physician, found plaintiff had functional limitations that the ALJ elected not to credit. Dr. Lane first examined plaintiff on October 9, 2001 and issued a Psychological and Comprehensive Mental Status Evaluation report in conjunction with a prior application for benefits. Docket 9, p. 425-29. He again examined her on April 26, 2005, before her date last insured. His examination was also before her date of onset in the current application for benefits, just as was Dr. Rahman's examination, whose entire opinion the ALJ granted significant weight. Docket 520-24. In both of Dr. Lane's examinations, he concluded that plaintiff's ability to maintain concentration and attention was limited and that she "would have problems interacting appropriately with coworkers and accepting supervision." Docket 9, p. 429, 523. The ALJ did note Dr. Lane's findings, but he "decline[d] to accord weight" to the opinion regarding plaintiff's difficulty maintaining concentration and attention for more than one or two hours and her problems interacting appropriately with co-workers and accepting supervision; despite rejecting those opinions, the ALJ did not cite to any medical evidence or other opinion that contradicted Dr. Lane's opinion. Docket 9, p. 27.

Similarly, Dr. Robert Hardy, plaintiff's treating psychiatrist at Community Counseling Services, opined that plaintiff's "low energy, poor concentration, and inability to withstand stress without anxiety symptoms make her a poor choice for employment." Docket 9, p. 137. On November 3, 2010, Dr. Hardy completed a Mental Impairment Questionnaire ("MIQ") based upon his own treatment of plaintiff for 2½ years and her treatment by other physicians at Community Counseling Services over a span of at least ten years. Docket 9, p. 972-977. Dr. Hardy opined that plaintiff's mental impairments resulted in moderate restrictions of daily living, marked difficulties in maintaining social functioning, marked deficiencies of concentration, persistence or pace, and that she had experienced four or more episodes of decompensation with at least three occurring "within one year or an average of once every for months, each lasting for at least 2 weeks...." Docket 9, p. 972-77. He further opined that plaintiff's abilities were "poor or none" in the areas of maintaining attention for two hour segments and dealing with normal work stresses. Id. Despite Dr. ...


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