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Wiggins v. Colvin

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

September 5, 2017

ELICIA M. WIGGINS PLAINTIFF
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          ROBERT H. WALKER UNITED STATES MAGISTRATE JUDGE

         Through counsel, [1] Plaintiff Elicia M. Wiggins filed this action May 5, 2016, seeking judicial review pursuant to 42 U.S.C. § 405(g) of the denial of Wiggins' application for supplemental security income under 42 U.S.C. § 1382c(a)(3). Wiggins contends the ALJ's finding of her residual functional capacity “was the product of error and was unsupported by substantial evidence.” [13, p. 3] 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

         On October 14, 2013, Wiggins filed application for supplemental security income benefits, alleging disability since January 1, 2002 when she was 25 years old, [2] due to ADHD, herniated discs, bulging discs, nerve inflammation, PTSD, anxiety and depression. [10, pp. 69-70, 131-134] Following denial of her application in November 2013, Wiggins requested a hearing. [10, pp. 72-83, 86-91, 93] On December 4, 2014, Administrative Law Judge (ALJ) David K. Fromme conducted the hearing in Springfield, MO, with Wiggins and Vocational Expert (VE) Terri Crawford testifying. [10, pp. 37-68]

         Wiggins testified she lives in a trailer with her boyfriend and her 15-year-old son in Pierce City, MO. Both she and her boyfriend are unemployed, neither has any income, and her boyfriend is also trying to get Social Security.[3] Wiggins has a 10th grade education and a valid driver's license. She testified she last worked in 2007 doing cleaning for Lacoba Homes, [4] but they wanted her to work eight hours then go to school to be a nurse or nurse assistant for four hours, which she declined because there would be no one to get her child on and off the bus. [10, pp. 41-43, 57, 183] Wiggins testified she has been unable to work since 2008 due to constant sharp, shooting pain in her lower back down into both legs. [10, p. 44]

         According to Wiggins, she can sit no longer than 30 minutes at a time, and can stand or walk only 10-15 minutes before having to stop due to low back pain. She takes hydrocodone, mobic, baclofen and gabapentin for back pain, and topiramate for migraine headaches. She does not sleep well because of her back and her “brain won't shut down.” She has difficulty bending over; after vacuuming for six to seven minutes, she has to rest 15-20 minutes. She has problems standing 15-20 minutes to wash dishes, and difficulty cleaning the bathroom and doing laundry (taking clothes from the dryer and standing to fold them), but she prepares meals daily and does laundry weekly. The heaviest thing she lifts at home is her 15-pound dog, but she stated she could not do that repeatedly during an eight-hour day. She stated she could not sit for two hours. She drives perhaps once a week, and stated she can usually ride in a car about ten minutes before experiencing back pain. [10, pp. 45-50, 52, 54, 57]

         Wiggins testified she has daily anxiety attacks and is uncomfortable going anywhere by herself except to the pharmacy for prescription drugs and frequent trips to the library. She stated she has panic attacks if there are too many people around when she goes out. She can use a computer, and does so at the library to check her son's Facebook page. She enjoys reading, [5] and if she is “lounging in the bed” at home, she can read for an hour before she has to get up; she cannot read that long sitting up. She is easily frustrated or irritated over such things as someone leaving a cabinet door open, or closing the bathroom door when no one is in there. She does not deal well with stress and finds everything stressful.

         Wiggins testified present treatment for her back is pain medication, and her doctor is talking about physical therapy, but for now she has only stretches and such to do. Pain medications help, but injections in her back made things worse. [10, pp. 53, 59] Wiggins takes topiramate and Imitrex for migraine headaches which last three or four hours if she has Imitrex to take. She stated she is prescribed only nine Imitrex a month and she has more than nine migraines a month. If she does not have Imitrex, she goes to the emergency room to get a shot for a migraine after seven or eight hours. She does not feel she could work an eight-hour day when she had a migraine even if she had her medication. [10, p. 60] Wiggins goes to Clark Community Mental Health Center for her mental conditions, where she sees Dr. Christy, M.D., and Michelle Whitmire, Psy.D. for “talk therapy” because her “default mode is anger.” She sees Dr. Whitmire every two weeks, or every week if needed. [10, pp. 51-57]

         In October 2013, Wiggins described her daily activities as getting up, feeding the dogs and taking them out, doing the dishes, doing laundry, sweeping and mopping if needed, dusting, taking the dogs out again, cooking supper, watching television and going to bed. She prepares meals and cleans every day, dusts once a week and does laundry often. She cares for her son and takes him to and from activities such as football games. She takes care of her own personal needs, bathes and dresses herself, sitting on the edge of the tub to shave. She can go out alone, shops for food, clothes and groceries, and tries to walk daily. Wiggins stated she can walk four or five blocks, then must rest about ten minutes. [10, p. 172] She can handle money, pay bills, count change, use a checkbook and handle a savings account. [10, pp. 167-70, 172]

         Vocational Expert Terri Crawford testified an individual could not sustain any competitive work if she had marked or extreme limitations in ability to understand, remember and carry out instructions; maintain attention, concentration and persistence for extended periods; maintain regular and punctual attendance; sustain an ordinary routine without special supervision; or is markedly limited in ability to interact with the public, to accept instructions and respond appropriately to criticism from supervisors, to respond appropriately to changes in the work setting or get along with co-workers without distraction. [10, pp. 61-62] There would also be no work available for one with impairments which would make her be off-task 20% of an eight-hour day, or who would miss work twice a month. [10, pp. 64-65] However, assuming one of Wiggins' age, education and work history, who is able to stand or walk two hours a day, sit six hours a day, lift ten pounds occasionally and less than ten pounds frequently; who can occasionally bend, stoop, crouch, squat, kneel, and crawl, but cannot climb ladders; who cannot work at heights or around hazardous moving equipment, or in extreme temperatures, humidity, dust, fumes, noise or vibration, nor work at high stress, fast-paced activity; who cannot handle frequent changes in the work setting, cannot work in contact with the public or have close interaction with coworkers; and who has difficulty sustaining a high level of concentration or sustained attention to detail, but can sustain simple, routine repetitive tasks, VE Crawford testified that such a person could perform unskilled work such as an addresser or final assembler, both of which are SVP (specific vocational preparation) level 2, [6] and are performed at the sedentary exertional level. [10, pp. 61-64]; U.S. Dep't of Labor, Dictionary of Occupational Titles (4th ed. 1991) 713.687-18.

         On March 24, 2015, ALJ Fromme issued a twelve-page decision finding Wiggins not disabled under the Social Security Act. [10, pp. 21-32] The Appeals Council denied review of that decision on March 22, 2016 [10, pp. 5-7], and Wiggins 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, 1019');">895 F.2d 1019, 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 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; 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. § 1382c(a)(3)(A). As the one claiming disability, Wiggins had the burden to prove disability which precludes her from engaging in substantial gainful work. 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. ...


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