United States District Court, S.D. Mississippi, Southern Division
LESLEY J. BROWN PLAINTIFF
COMMISSIONER OF SOCIAL SECURITY DEFENDANT
OPINION AND ORDER
MICHAEL T. PARKER UNITED STATES MAGISTRATE JUDGE
Lesley J. Brown brings this action pursuant to 42 U.S.C.
§ 405(g) seeking judicial review of a final decision of
the Commissioner of Social Security Administration denying
her claim for disability insurance benefits. Having reviewed
the parties' submissions, the record, and the applicable
law, the Court finds that Plaintiff's Motion for Summary
Judgment  should be granted in part and denied in part
and that this matter should be remanded for further
30, 2013, Plaintiff applied for disability insurance
benefits, alleging disability beginning on May 5, 2009,
to fibromyalgia, sleep apnea, major depressive disorder,
hypertension, vitamin D deficiency, chronic migraines,
asthma, scoliosis, bulging discs, high cholesterol, abnormal
mammogram, and hypersomnia. (Administrative Record  at
188). After the agency denied Plaintiff's claim, an
Administrative Law Judge (“ALJ”) held a hearing.
( at 67). On February 11, 2015, the ALJ issued a decision
finding that Plaintiff was not disabled. ( at 20). On
June 24, 2016, the Appeals Council denied Plaintiff's
request for review, rendering the ALJ's decision the
final decision of the Commissioner. ( at 6). Plaintiff
now seeks judicial review in this Court under 42 U.S.C.
LAW JUDGE'S DECISION
February 11, 2015, decision, the ALJ applied the five-step
sequential analysis set forth in 20 C.F.R. §
404.1520(b)-(f) and determined that Plaintiff was not
disabled. At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since May 25, 2013,
her alleged disability onset date. At step two, the ALJ found
that Plaintiff had the following severe impairments:
complaints of headaches and fibromyalgia, cervical and lumbar
disc disease, hypertension, obesity, and a history of an
affective disorder and a personality disorder. At step three,
the ALJ found that these impairments did not meet or
medically equal the severity of one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1. ( at 27).
then examined the record and determined that Plaintiff had
the residual functional capacity
(“RFC”) to “perform light work as defined in
20 CFR 404.1567(b) except with no climbing of ladders, ropes
or scaffolds, occasional climbing or ramps or stairs, no
concentrated exposure to excessive noise, no work around
dangerous moving machinery or at unprotected heights and she
is limited to the performance of simple, routine and
repetitive tasks with occasional interaction with the public,
coworkers and supervisors.” The ALJ determined at step
four that Plaintiff could not perform any past relevant work,
but found at step five that jobs existed in significant
numbers in the national economy that she could perform.
Accordingly, the ALJ found that Plaintiff was not disabled.
( at 27-35).
Court's review of the Commissioner's decision is
limited to determining whether there is substantial evidence
to support the Commissioner's findings and whether the
correct legal standards were applied in evaluating the
evidence. Hollis v. Bowen, 837 F.2d 1378, 1382 (5th
Cir. 1988). 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.” Hames v. Heckler, 707
F.2d 162, 164 (5th Cir. 1983). To be substantial, the
evidence “must do more than create a suspicion of the
existence of the fact to be established.” Id.
“[a] finding of no substantial evidence is appropriate
only if no credible evidentiary choices or medical findings
support the decision.” Boyd v. Apfel, 239 F.3d
698, 704 (5th Cir. 2001) (internal citations and quotations
omitted). Conflicts in the evidence are for the Commissioner,
not the courts, to resolve. Selders v. Sullivan, 914
F.2d 614, 617 (5th Cir. 1990). A court may not re-weigh the
evidence, try the issues de novo, or substitute its
judgment for the Commissioner's, “even if the
evidence preponderates against” the Commissioner's
decision. Harrell, 862 F.2d at 475. If the decision
is supported by substantial evidence, it is conclusive and
must be affirmed. Selders, 914 F.2d at 617.
Moreover, “‘[p]rocedural perfection in
administrative proceedings is not required' as long as
‘the substantial rights of a party have not been
affected.'” Audler v. Astrue, 501 F.3d
446, 448 (5th Cir. 2007) (quoting Mays v. Bowen, 837
F.2d 1362, 1364 (5th Cir.1988)).
raises the following issues for review: (1) whether the
credibility determination is consistent with applicable legal
standards or supported by substantial evidence and (2)
whether the ALJ failed to develop the record regarding
treating physician Dr. Grow's opinion as to the
functional effects of Plaintiff's fibromyalgia.
argues that the ALJ erred in his evaluation of the subjective
evidence of Plaintiff's alleged pain and other symptoms.
Before going from step three to step four of the five-step
sequential analysis, an ALJ assesses a claimant's RFC. As
previously explained, a claimant's RFC assessment is a
determination of the most the claimant can still do despite
her physical and mental limitations and is based on all
relevant evidence in the claimant's record. See
20 C.F.R. § 404.1545(a)(1). The claimant's RFC is
used at both steps four and five of the sequential analysis:
at step four to determine if the claimant can still perform
her past relevant work, and at step five to determine whether
the claimant can adjust to any other type of work.
See 20 C.F.R. § 404.1520(e).
determining a claimant's RFC, an ALJ considers
descriptions and observations of the claimant's
limitations (including limitations that result from the
claimant's symptoms, such as pain) provided by the
claimant, family, neighbors, friends, or other persons.
See 20 C.F.R. § 404.1545(a). Social Security
regulations prescribe a two-step process for evaluating
subjective complaints of pain and other symptoms.
See 20 C.F.R. §§ 404.1529, 416.929; SSR
96-7p.Under the first step, the ALJ considers
whether there is a medically determinable physical or mental
impairment that could reasonably be expected to produce the
individual's pain or other symptoms. The first step
requires a claimant to produce objective medical evidence of
an impairment and show that the impairment could reasonably
be expected to (not that it did in fact) produce some degree
of symptoms. Newbauer v. Astrue, 2012 WL 3727603, at
*1 (S.D. Tex. Aug. 27, 2012) (citing Smolen v.
Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996)). The
first step “does not . . . entail a determination of
the intensity, persistence, or functionally limiting effects
of the claimant's asserted” symptoms. Craig v.
Chater, 76 F.3d 585, 594 (4th Cir. 1996).
claimant meets the burden of showing an impairment that could
reasonably be expected to produce the alleged symptoms, the
ALJ moves on to the second step. At the second step, the ALJ
determines the “intensity, persistence, or limiting
effect” of the alleged symptoms. The second step
requires the ALJ to consider the record as a whole, including
both objective and subjective evidence. “[S]tatements
about the intensity and persistence of pain or other symptoms
or about the effect the symptoms have on his or her ability
to work may not be disregarded solely because they are not
substantiated by objective medical evidence.” SSR
96-7p. In addition to objective medical evidence, the ALJ
must consider several other specific categories of evidence,
(1) the individual's daily activities;
(2) the location, duration, frequency, and intensity of the