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Dennis v. Colvin

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

May 27, 2015

ELWYN DENNIS, Plaintiff,
CAROLYN W. COLVIN Commissioner, United States Social Security Administration, Defendant.


F. KEITH BALL, Magistrate Judge.

This cause is before the undersigned for a report and recommendation as to Plaintiff's Motion for Summary Judgment [9] and Defendant's Motion for an Order Affirming the Decision of the Commissioner [11]. Having considered the record in this matter, the undersigned recommends that Plaintiff's motion be granted in part and denied in part, and that Defendant's motion be denied.


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 28, 2013, [8] at 24, [1] and the Appeals Council on May 9, 2014. Id. at 1. Plaintiff was 45 years old at the time of the alleged onset of disability, making him a "younger" person for social security purposes. Id. at 22. Plaintiff has a limited education, and before claiming to be disabled, worked as a truck driver, construction worker, construction foreman, material handler and working floor supervisor. Id.

Following the applicable five-step analysis, [2] the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date of March 30, 2010 (step 1), and had severe impairments of cervical and lumbar disc disease, chronic bronchitis, obesity, depression and anxiety (step 2). Id. at 14. The ALJ concluded that Plaintiff's impairments were not as severe as any impairment listed as presumptively disabling in the applicable regulations (step 3). Id. at 15. The ALJ then determined that Plaintiff retained the residual functional capacity (RFC) to perform light work,

except: he requires the ability to walk around briefly (no more than five minutes) after sitting for thirty minutes, and to sit briefly after standing or walking for thirty minutes; he should never climb ladders, ropes or scaffolds and should only occasionally balance, stoop, kneel, crouch, crawl, or climb ramps or stairs; should not be required to perform overheard reaching; he should avoid even moderate exposure to temperature extremes; he should avoid even moderate exposure to pulmonary irritants including fumes, odors, dusts, gases, poor ventilation and chemicals; and he is limited to performing only simple, routine tasks which do not require more than occasional interaction with the general public.

Id. at 17. The ALJ determined that Plaintiff was unable to perform his past relevant work (step 4). Id. at 22. 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. Id. at 23.


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.


1. SSR 06-3p

Plaintiff first contends that the ALJ committed reversible error in not properly considering the opinion of a nurse practitioner, Charlie Hardin. Plaintiff maintains that pursuant to Social Security Ruling ("SSR") 06-3p, Hardin's opinion as a treating non-medical source should have been afforded more weight than the ALJ gave, particularly because the ALJ erred in her consideration of the treatment relationship. [10] at 11-13.

Hardin completed a medical opinion form or questionnaire addressing Plaintiff's ability to perform work-related activities. [8] at 346. Hardin indicated, inter alia, that Plaintiff could lift only ten pounds, could stand and walk less than two hours a day and could sit about two hours a day. Id. In the section requesting identification of medical findings supporting those limitations, Hardin wrote "multiple herniations in lumbar spine" and "failed fusion L-spine x5." Id. at 347. The ALJ addressed Hardin's opinion as follows:

On May 23, 2011, Charlie Hardin, N.P., opined the claimant [sic] impairments would prevent him from performing even sedentary work activities. (Exhibit 8F) The undersigned considered Mr. Hardin's opinion, but affords it limited weight for three reasons. First, as a nurse practitioner, Mr. Hardin is not an acceptable medical source within the meaning of regulations. Second, whether the claimant is disabled is an issue reserved to the Commissioner pursuant to Social Security 96-5p. Third, it appears that this was the first visit the ...

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