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Brown v. Commissioner of Social Security

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

September 21, 2017

LESLEY J. BROWN PLAINTIFF
v.
COMMISSIONER OF SOCIAL SECURITY DEFENDANT

          OPINION AND ORDER

          MICHAEL T. PARKER UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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 [13] should be granted in part and denied in part and that this matter should be remanded for further consideration.

         PROCEDURAL HISTORY

         On July 30, 2013, Plaintiff applied for disability insurance benefits, alleging disability beginning on May 5, 2009, [1] due 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 [10] at 188). After the agency denied Plaintiff's claim, an Administrative Law Judge (“ALJ”) held a hearing. ([10] at 67). On February 11, 2015, the ALJ issued a decision finding that Plaintiff was not disabled. ([10] 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. ([10] at 6). Plaintiff now seeks judicial review in this Court under 42 U.S.C. § 405(g).

         ADMINISTRATIVE LAW JUDGE'S DECISION

         In his February 11, 2015, decision, the ALJ applied the five-step sequential analysis set forth in 20 C.F.R. § 404.1520(b)-(f)[2] 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. ([10] at 27).

         The ALJ then examined the record and determined that Plaintiff had the residual functional capacity (“RFC”)[3] 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. ([10] at 27-35).

         STANDARD OF REVIEW

         This 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. (citations omitted).

         However, “[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)).

         ANALYSIS

         Plaintiff 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.

         Credibility Determination

         Plaintiff 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).

         In 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.[4]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).

         If the 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, including:

(1) the individual's daily activities;
(2) the location, duration, frequency, and intensity of the ...

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