United States District Court, S.D. Mississippi, Southern Division
LINDA F. DAVIS PLAINTIFF
CAROLYN W. COLVIN, Acting Commissioner of Social Security DEFENDANT
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT (ECF NO. 14) AND AFFIRMING THE
DECISION OF THE COMMISSIONER
C. GARGIULO UNITED STATES MAGISTRATE JUDGE
to 42 U.S.C. § 405(g), Plaintiff Linda F. Davis seeks
judicial review of a decision by the Commissioner of the
Social Security Administration, denying her claim for
Disability Insurance Benefits (DIB) under Title II of the
Social Security Act, 42 U.S.C. § 401-433, and her claim
for Supplemental Security Income (SSI) under Title XVI of the
Social Security Act, 42 U.S.C. § 1381-1383f. Plaintiff
has filed a Motion for Summary Judgment (ECF No. 14) and
Memorandum (ECF No. 15), and the Commissioner has filed a
Memorandum in Opposition (ECF No. 19). Having reviewed the
administrative record, the submissions of the parties, and
relevant law, the Court concludes that the decision of the
administrative law judge (ALJ) is supported by substantial
evidence and in accord with relevant legal standards.
Plaintiff's Motion for Summary Judgment should be denied,
and the decision of the Commissioner affirmed.
2012, Plaintiff filed an application for DIB and SSI.
Plaintiff alleged disability beginning February 1, 2012, due
to breast cancer and post-mastectomy lymphedema syndrome of
the left upper extremity. (ECF No. 9, at 188). Plaintiff was
54 years old on the alleged onset date of February 1, 2012.
She had a left modified radical mastectomy in April 1999.
(ECF No. 9, at 61). Plaintiff did not allege mental
impairment as a basis for disability when she filed her
application. She now alleges that she has a mental impairment
of major depressive disorder that was not properly evaluated
by the ALJ. (ECF No. 15, at 13-20). The diagnosis of major
depressive disorder was made months after the date of
Plaintiff's application by a nurse practitioner and a
licensed counselor at Gulf Coast Mental Health Center. (ECF
No. 9, at 315, 321, 326).
completed high school with a GED and has taken vocational
classes in cosmetology but never practiced. Id. at
75. She has worked as a driver for a rental car agency and as
a food server. Id. at 63. Plaintiff's last
employment was in 2010 as a driver. Plaintiff was let go from
that job in August 2010 due to an alleged dispute with a
coworker. Id. at 76. For purposes of her DIB claim,
Plaintiff acquired sufficient quarters of coverage to remain
insured through December 31, 2014. Id. at 57.
denial of her claim initially and on reconsideration,
Plaintiff requested a hearing before an ALJ. ALJ Wallace E.
Weakley held a video hearing on February 19, 2014. (ECF No.
9, at 57-64). Plaintiff appeared with counsel and testified.
A vocational expert (VE) also testified.
March 24, 2014, the ALJ issued a decision concluding that
Plaintiff was not disabled from February 1, 2012, through the
date of the decision. The ALJ utilized the five-step
sequential evaluation process to find Plaintiff not disabled.
20 C.F.R. § 404.1520(a) and 20 C.F.R. §
416.920(a). At step one, the ALJ determined that
Plaintiff had not engaged in substantial gainful activity
since her alleged onset date of February 1, 2012.
Id. at 59. At step two, the ALJ found that Plaintiff
had severe impairments of “obesity, status post left
mastectomy, limited use of left upper extremity due to
lymphedema.” Id. At step three, the ALJ
concluded that Plaintiff did not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1.” Id.
the ALJ determined 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 no requirement for raising upper left extremity above
shoulder height.” Id. at 60. The ALJ concluded
that Plaintiff's medically determinable impairments could
reasonably be expected to cause the alleged symptoms;
however, the claimant's statements concerning the
intensity, persistence and limiting effects of these symptoms
are not entirely credible . . .” Id. at 61.
Plaintiff maintains that the ALJ's credibility
determination is not supported by substantial evidence. (ECF
No. 15, at 21-23).
four, the ALJ noted Plaintiff's past relevant work
experience as a driver for a rental car company and as a food
server. Id. at 63. At step five, the ALJ relied upon
the VE's testimony to find Plaintiff capable of
performing her past work. Id. The Appeals Council
denied Plaintiff's request for review, rendering the
ALJ's March 24, 2014, decision the final decision of the
STANDARD OF REVIEW
Court has jurisdiction over this action pursuant to 28 U.S.C.
§ 1331 and 42 U.S.C. § 405(g). Because both parties
have consented under 28 U.S.C. § 636(c) to have a United
States Magistrate Judge conduct all of the proceedings in
this case, the undersigned has the authority to issue this
opinion and the accompanying final judgment.
Court's review is narrowly prescribed. Review of the
Commissioner's decision is limited to an inquiry into
whether there is substantial evidence on the record as a
whole to support the findings of the Commissioner and whether
the correct legal standards were applied. 42 U.S.C. §
405(g); Richardson v. Perales, 402 U.S. 389, 401
(1971); Falco v. Shalala, 27 F.3d 160, 163 (5th Cir.
1994). A'[S]ubstantial evidence' is less than a
preponderance but more than a scintilla." Bowling v.
Shalala, 36 F.3d 431, 434 (5th Cir. 1994). Substantial
evidence Amust 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.
in the evidence are for the Commissioner to resolve. If the
Commissioner's factual findings are supported by
substantial evidence, they are conclusive and must be
affirmed. Selders v. Sullivan,914 F.2d 614, 617
(5th Cir. 1990). The Court may not reweigh the evidence, try
the issues de novo, or substitute its judgment for
the Commissioner's, "even if ...