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Rushing v. Colvin

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

June 11, 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 Rosemary Jones Rushing's application for a period of disability (POD) and disability insurance benefits (DIB) under Title II of the Social Security Act (Act) and supplemental security income (SSI) under Title XVI of the Act. Plaintiff filed her initial application for benefits on December 6, 2011, with an alleged disability onset date of April 28, 2011. Docket 10, p. 12. The agency denied plaintiff's disability applications initially on January 17, 2012 and upon reconsideration on March 28, 2012. Docket 10, p. 48-55, 62-63. Plaintiff then requested a hearing, which an Administrative Law Judge ("ALJ") held on May 21, 2013. Docket 10, p. 24-43. The ALJ issued an unfavorable decision on June 27, 2013 (Docket 10, p. 9-23), and the Appeals Council denied plaintiff's request for a review on August 22, 2014, Docket 10, p. 1-6. 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 February 6, 1973 and was 39 years old at the time of the ALJ hearing. Docket 10, p. 28, 107, 109. She has a high school education and past relevant work experience as a sorter and a certified nursing assistant. Docket 10, pp. 28-30. Plaintiff alleged a disability onset date of April 28, 2011. Docket 10, p. 12, 107-09. Plaintiff later attempted to amend her alleged onset date to November 16, 2011 (Docket 10, p. 133) due to having performed some work with a temp agency after her alleged onset date however, that work had already been determined to qualify as an unsuccessful work attempt, which does not count against the plaintiff and, in fact, may be considered as proof of disability. See Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986).

In evaluating plaintiff's disability, the ALJ determined that plaintiff suffered from "severe" impairments, including degenerative disc disease of the lumbar spine and obesity, but that those 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), 404.1526, 416.920(d), 416.925 and 416.926). Considering those "severe" impairments, the ALJ concluded that plaintiff retained the Residual Functional Capacity (RFC) to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) "except she should not climb ropes, ladders, or scaffolds... [and] should only occasionally climb ramps and stairs and only occasionally balance, stoop, crouch, crawl, and kneel." Docket 10, p. 16.

The ALJ held that plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were "not entirely credible" because "the evidence of record [did] not support such claims." Docket 10, p. 17. Further, the ALJ afforded "little weight" to the plaintiff's treating physician, Dr. Brock, because the doctor's "conclusions as to limitation[s] are not supported by his own observations that the claimant has had a normal gait for the previous few years or by objective medical findings from MRI and CT scans." Docket 10, p. 18.

After evaluating the evidence in the record, the ALJ held that plaintiff was unable to perform the requirements of her past work as a certified nursing assistant and a sorter. Docket 10, p. 16-18. However, based on vocational expert (VE) testimony, the ALJ concluded that plaintiff retained the RFC to perform light work and was capable of making a successful adjustment to other work that exists in significant numbers in the national economy. Docket 10, p. 18-19. The VE testified that, with the limitations set out by the ALJ, the plaintiff would be able to perform jobs such as counter attendant, locker room attendant, and room service clerk. Docket 10, p. 19. Therefore, the ALJ concluded plaintiff was "not disabled" under the Act. Docket 10, p. 19-20.

On appeal, the plaintiff asserts the ALJ erred in reaching his disability determination by improperly weighing the opinion of plaintiff's treating physician and, instead, giving significant weight to a non-examining, non-treating consultative physician's assessment. Docket 14, pp. 7-18. The plaintiff also asserts that the ALJ ignored the Treating Physician Rule, failed to fully develop the record, and failed to consider the plaintiff's severe impairment of obesity in conjunction with her other impairments in reaching his determinations. Docket 14, pp. 19-28. The court finds the ALJ improperly relied on the opinion of a non-examining consulting physician instead of the plaintiff's treating physician without applying proper legal standards.


In determining disability, the Commissioner, through the ALJ, works through a five-step sequential evaluation process. See 20 C.F.R. § 404.1520; 416.920. Plaintiff has the burden throughout the first four steps of the process to prove disability and if she is successful in sustaining her burden at each of the first four steps, 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); 416.920(a)(4)(i). 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); 416.920(a)(4)(ii). At step three the ALJ must conclude plaintiff is disabled if she proves 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); 416.920(a)(4)(iii). 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); 416.920(a)(4)(iv). Finally, at step five, the burden shifts to the Commissioner to prove, considering plaintiff's RFC, age, education, and past work experience, that she is capable of performing other work. 20 C.F.R § 404.1520(g); 416.920(a)(4)(v). If the Commissioner proves other work exists which plaintiff can perform, plaintiff is given the chance to prove she cannot, in fact, perform that work. See Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991).


On appeal, the court considers whether the Commissioner's final decision is supported by substantial evidence and whether the Commissioner applied 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 (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). 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); ...

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