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Allen v. Berryhill

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

July 21, 2017

ROXANNE LYNNE ALLEN PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          ROBERT H. WALKER, UNITED STATES MAGISTRATE JUDGE

         Through counsel, Plaintiff Roxanne Lynne Allen filed this action June 15, 2016, seeking judicial review under 42 U.S.C. § 405(g) and § 1382c(a)(3) of the denial of Allen's claims for Social Security disability and Supplemental Security Income benefits.[1] Allen's motion for summary judgment reversing the Commissioner's decision presents for review whether the Commission properly (1) evaluated her ability to meet non-exertional requirements of light unskilled work, (2) credited her treating physicians' findings as to fibromyalgia, (3) analyzed the effects of her obesity on her exertional impairments, and (4) credited treating physicians' findings as to spinal disorders. [14, p. 1] The parties consented to exercise of jurisdiction by the United States Magistrate Judge under 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 and the case was reassigned to the undersigned for all further proceedings. [11], [12]

         Facts and Procedural History In January 2013 Allen filed applications for Social Security disability benefits and supplemental security income, alleging disability since January 9, 2012 at age 51, [2] due to degenerative disc disease, depression, fibromyalgia, HBP, spinal stenosis and arthritis. [10');">10, pp. 94-99] The Commission denied the applications initially on July 8, 2013 and on reconsideration on September 30, 2013. [10');">10, pp. 89, 96, 10');">107, 118] On December 4, 2014, Administrative Law Judge David Benedict conducted a hearing, at which Allen and Vocational Expert Kelly Hutchins testified. [10');">10, pp. 51-72]

         Allen testified she has a GED and two years of college. She has a valid driver's license, and drives once or twice a week. From 1995-2005, she worked at Grand Casino, starting as a pit clerk for about three months, then in revenue audit for a year, as a hotel front desk clerk for three years, and as a dealer for five years. In 2007 she worked at Imperial Palace Casino as a security observer. She has not worked since January 2012. [10');">10, pp. 55-56, 205, 225]

         Allen testified her primary care provider Dr. Barnes thought she might be having seizures, but neurologist Dr. Lennon Bowen disagreed. She stated she loses time, things occur that she does not remember. Her forgetfulness has gotten worse since January 2012, as have her breathing problems. She testified she stopped smoking a week or two before the hearing, that she has a puff but cannot really smoke anymore. Her breathing is not as bad since she stopped. She stated she was just in the hospital with flu and pneumonia, and is still sick.[3] Harsh smells trigger breathing problems, and she thinks her weight affects her breathing as well-she is 5'6" and weighs 274 pounds. [10');">10, p. 63] Allen takes Zoloft for stress and anxiety. She testified she can carry a gallon of milk a short distance. She drops things a lot and does not carry anything while using her cane, which she stated she uses all the time for balance. She testified she can stand for only a few minutes before she has to lean on something or sit down, if she stands too long she has back pain which feels like her back is being “cut into.” If she does not sit down and rest, she feels like her body is twisting while she walks. She can sit for thirty minutes before having to move her feet or shift her body; when she sits the pain “rolls up and down” her back in waves. She testified she has mild neuropathy, numbness and tingling in her feet and hands.

         Allen described her daily activities as reading, [4] and using the computer a little. She does not watch much television, [5] but tries to catch up on sleep due to her irregular sleeping habits - she sleeps two or three hours at a time, wakes, then sleeps again. She uses oxygen at night for COPD. She testified she cannot, or does not, make beds, and cannot sweep or mop even with frequent rest; she can fold clothes but cannot put them away. [10');">10, pp. 58-65]

         Vocational Expert (VE) Hutchins reviewed Allen's work history and testified Allen's most recent work as a security observer and dispatcher is sedentary work with a skill level of 4; her work as a casino dealer is light work with a skill level of 5; the front desk clerk job is light work with a skill level of 4; and the audit clerk is sedentary with a skill level of 7. [10');">10, p. 67] Considering Allen's age, education and work experience; her ability to lift 20 pounds occasionally and 10');">10 pounds frequently; to sit, stand, and walk six hours in an eight-hour day; to occasionally balance, stoop, kneel, crouch, crawl, climb ramps/stairs, but never climb ladders, ropes or scaffolds; her need to avoid concentrated exposure to pulmonary irritants and to have no no exposure to hazards, e.g., moving machinery or unprotected heights; her ability to maintain attention/concentration for two-hour blocks of time; and a limitation to unskilled, low-stress work involving simple, routine, repetitive tasks with no fast-paced production requirements and only simple work related decisions and few or no changes in the work setting, Hutchins opined that Allen remained capable of work as a mail sorter, bench assembler, or linen folder -- all of which are light work with a skill level of 2, and such jobs are available in significant numbers. [10');">10, pp. 68-9] No jobs would be available for one capable of reasoning at only level 1, or maintaining attention or concentration for only one-hour blocks of time and would be off task more than 25 percent of the day. [10');">10, p. 70]

         On January 28, 2015, ALJ Benedict issued an eleven-page decision finding Allen not disabled under the Social Security Act. [10');">10, pp. 13-22] The Appeals Council denied review of that decision on April 11, 2016 [10');">10, pp. 5-7], and Allen filed the present action in this Court.

         Standard of Review Judicial review of a final decision of the Commissioner of Social Security is limited to determining whether substantial record evidence supports the Commissioner's factual findings, and whether such findings are reached through the application of correct legal standards. Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005); Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a preponderance. Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000); Villa v. Sullivan, 895 F.2d 10');">1019, 10');">1022 (5th Cir. 1990). The Court reviews the entire record to determine whether substantial evidence supports the Commissioner's decision. Villa, 895 F.2d at 10');">1022. Credibility of witnesses and conflicts in the evidence are issues for resolution by the Commissioner, not the Court. It is not the Court's prerogative to substitute its judgment for that of the Commissioner or to re-weigh the evidence. Audler v. Astrue, 501 F.3d 446, 447 (5th Cir. 2007); Harris, 209 F.3d at 417 (quoting Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995)); Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988) (a finding of “no substantial evidence” is appropriate only if no credible evidentiary choices or medical findings support the decision). Factual findings supported by substantial record evidence are conclusive and must be upheld. Estate of Morris v. Shalala, 207 F.3d 744, 745 (5th Cir. 2000); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The Court may reverse a decision of the Commissioner if it is based upon faulty legal analysis, but should accept the Commissioner's legal conclusions if they are within reasonable meanings of the statutory or regulatory language. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 841-44 (1984). Absent a finding that the decision is unsupported by substantial evidence or that the Commissioner applied an incorrect legal standard, the Court must affirm the administrative decision [Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001)]; the decision of the Commissioner is accorded great deference and “will not be disturbed unless the reviewing court cannot find substantial evidence in the record to support the ... decision or finds that the Commissioner made an error of law.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).

         Analysis The Social Security Act defines disability as “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months...” 42 U.S.C.A. § 423(d)(1)(A). As the one claiming disability, Allen had the burden to prove a disability which precluded her from engaging in substantial gainful work prior to December 31, 2013, her date last insured. Masterson v.

         Barnhart, 309 F.3d 267, 271 (5th Cir. 2002); Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991); Bowen v. Yuckert, 482 U.S. 137, 146 (1987); Anthony v. Sullivan, 954 F.2d 289, 293 (5th Cir. 1992) (“suffering of some impairment does not establish disability; a claimant is disabled only if [she] is ‘incapable of engaging in any substantial gainful activity'”).

         ALJ Benedict applied the correct law for determining disability - following the five-step sequential evaluation process set out at 20 C.F.R. § 404.1520(a)(4), § 416.920(a)(4)(i-v). Through the first four steps of the evaluation process, the burden of proof rests on the party claiming disability. Leggett, 67 F.3d at 564; Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). Step one requires determination of whether the claimant is engaging in substantial gainful activity, i.e., work that involves significant physical or mental activities and is usually done for pay or profit. Judge Benedict found that Allen had not engaged in substantial gainful activity since January 9, 2012.

         At step two the ALJ determines whether the claimant has a medically determinable impairment or combination of impairments which meets the duration requirement and is severe, i.e., which significantly limits ability to perform basic work activities. ALJ Benedict found Allen has severe impairments of mild neurocognitive disorder, obstructive pulmonary disease (COPD), seizure disorder and obesity which impose more than minimal work-related limitations.

         Step three requires determination of whether the claimant's impairment or combination of impairments is of such severity that it meets or medically equals the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Unless the impairment or combination of impairments is of such severity and meets the duration requirement, the analysis continues to step four. Judge Benedict considered Allen's obesity in determining whether her medically determinable impairments meet/equal a listing, but lack of medical evidence and the fact that “no treating or examining physician has recorded findings equivalent in severity to the criteria of 3.02, 11.02, 11.06, [6] or any listed impairment..., ” led him to find Allen had no impairment or combination of impairments which meets/equals the severity of a listed impairment. [10');">10, p. 4] The ALJ further found Allen's claimed mental impairment does not meet or medically equal the criteria of listing 12.02 (organic mental disorders), due to lack of evidence of any marked limitations or restrictions - Allen was found to have only mild restriction in daily living activities, mild difficulties in social functioning, moderate difficulties with respect to concentration, persistence or pace, and no episodes of decompensation of extended duration. [10');">10, pp. 215, 217, 218] Furthermore, Allen's January 2014 ...


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