Miller v. Commissioner of Social Security

          MEMORANDUM OPINION

          DAVID A. SANDERS UNITED STATES MAGISTRATE JUDGE

         This matter is before the court pursuant to 42 U.S.C. § 405(g) to review the decision of the Commissioner of Social Security (“Commissioner”) denying the application of Rickey Thomas Miller for disability benefits under the Social Security Act. The parties have consented to entry of final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the Fifth Circuit.

         The court, having reviewed the administrative record, the briefs of the parties, the applicable law, and having heard oral argument, finds the Commissioner's decision denying benefits should be affirmed. The decision is supported by substantial evidence and no prejudicial error has been found.

         Facts and Procedural History

         On November 19, 2013, Rickey Miller filed his application for a period of disability and disability insurance benefits, alleging onset of disability on June 1, 2013. After the application was denied at the lower levels, a hearing was held before an administrative law judge (ALJ) on November 17, 2015. An unfavorable decision was issued on May 4, 2016. Miller's insured status expires on December 31, 2017.

         The ALJ found that Miller's hearing impairment, otosclerosis, was severe. After determining that the claimant did not meet any listed impairment, the ALJ determined Miller's residual functional capacity, finding he could perform a full range of work at all exertional levels but that he could work in no more than a moderate noise-level environment. Relying on the testimony of a vocational expert, the ALJ concluded that Miller was capable of adjusting to work other than his past work experience and that such other work existed in sufficient numbers in the national economy. Therefore, he was found not disabled.

         The claimant asserts the ALJ's decision is not supported by substantial evidence and is not based upon proper legal standards because the ALJ substituted his own opinions for, or misinterpreted, those of the medical and vocational experts.

         Law and Standard of Review

         This court's review of the Commissioner's decision is limited to an inquiry into whether there is substantial evidence 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); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence has been defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept at adequate to support a conclusion.” Perales, 402 U.S. at 401 (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)). The Fifth Circuit has further held that substantial evidence “must 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 decide, and if substantial evidence is found to support the decision, the decision must be affirmed even if there is evidence on the other side. Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The court may not reweigh the evidence, try the case de novo, or substitute its own judgment for that of the Commissioner even if it finds that the evidence preponderates against the Commissioner's decision. Bowling v. Shalala, 36 F.3d 431, 434(5th Cir. 1994); Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988); Harrell, 862 F.2d at 475. If the Commissioner's decision is supported by the evidence, then it is conclusive and must be upheld. Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994).

         In determining disability, the Commissioner, through the ALJ, works through a five-step sequential process.^[1] The burden rests upon the claimant throughout the first four steps of this five-step process to prove disability, and if the claimant is successful in sustaining his burden at each of the first four levels, then the burden shifts to the Commissioner at step five.^[2] First, claimant must prove he is not currently engaged in substantial gainful activity.^[3] Second, claimant must prove his impairment is “severe” in that it “significantly limits his physical or mental ability to do basic work activities . . . .”^[4] At step three, the ALJ must conclude claimant is disabled if he proves that his impairments meet or are medically equivalent to one of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1.^[5] Fourth, claimant bears the burden of proving he is incapable of meeting the physical and mental demands of his past relevant work.^[6] If claimant is successful at all four of the preceding steps, the burden shifts to the Commissioner to prove, considering claimant's residual functional capacity, age, education, and past work experience, that he is capable of performing other work.^[7] If the Commissioner proves other work exists which claimant can perform, claimant is given the chance to prove that he cannot, in fact, perform that work.^[8]

         Analysis and Discussion

         In the present case, essentially a single issue lies before the court: Whether the ALJ erred by substituting his own opinions for, or misinterpreting, those of the medical and vocational experts. Claimant argues that the ALJ misinterpreted his medical records and that the ALJ analyzed the medical records and vocational testimony out of context when he found the claimant not disabled.

         In 2007, 2011, and 2012, claimant was seen by Drs. Malcolm and James McAuley, ENT specialists. In December 2007, Miller presented with tinnitus in both ears, which had been ongoing for approximately one month. He complained of associated symptoms of difficulty concentrating, hearing loss, and insomnia. However, Dr. McAuley found him “[n]egative for . . . lack of concentration and psychiatric/emotional problems.”^[9] He was found to have chronic mixed hearing loss, and they discussed corrective surgery and hearing aids. In February 2011, Miller again presented with bilateral sensorineural hearing loss. He and Dr. McAuley again discussed the options of surgery or hearing aids. Miller opted for hearing aids. By 2012, Miller's hearing loss had progressed to moderate “with a noticed decline.” He was negative for fatigue and exhibited normal levels of consciousness. Surgery was again discussed, but Dr. McAuley explained that surgery would not cure the ringing in claimant's ears.

         In 2014, claimant was examined by Dr. J. Montgomery Berry, an ENT specialist, who found that Miller had difficulty discriminating voices, as well as hearing loss and tinnitus.^[10]He also found Miller positive for fatigue. Notably, Dr. Berry discussed new tinnitus hearing aids. Miller was to schedule an appointment to get fitted for these new hearing aids when he was ready.^[11] Following an audiogram, Dr. Berry found claimant's hearing loss to be “moderately-severe to profound.” Dr. Berry also performed a consultative examination in February ...