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Davis v. Colvin

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

March 6, 2017

LINDA F. DAVIS PLAINTIFF
v.
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

          JOHN C. GARGIULO UNITED STATES MAGISTRATE JUDGE

         Pursuant 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.

         I. BACKGROUND

         In June 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).

         Plaintiff 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.

         Following 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.

         On 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).[1] 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.

         Next, 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).

         At step 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 Commissioner.

         II. STANDARD OF REVIEW

         The 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.

         The 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. 1983)).

         Conflicts 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 ...


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