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Fennell v. Commissioner of Social Security

United States District Court, N.D. Mississippi, Oxford Division

October 3, 2017




         This cause is before the court on the plaintiff's complaint for judicial review of an unfavorable final decision by the Commissioner of the Social Security Administration. 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, and the applicable law and having heard oral argument, finds as follows, to-wit:


         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, Richardson v. Perales, 402 U.S. 389, 401 (1971), and whether the correct legal standards were applied. 42 U.S.C. § 405 (g.); Falco v. Shalala, 27 F.3d 160, 162 (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 as 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, Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988), even if it finds that the evidence preponderates against the Commissioner's decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); Harrell, 862 F.2d at 475. The court must however, in spite of its limited role, “scrutinize the record in its entirety to determine the reasonableness of the decision ... and whether substantial evidence exists to support it." Randall v. Sullivan, 956 F.2d 105, 109 (5th Cir. 1992). If the Commissioner's decision is supported by the evidence, then it is a conclusive and must be upheld. Perales, 402 U.S. at 390.


         Pamela Hilley Fennell, was fifty-nine years old at the time of her hearing in March 2015. She alleged onset of disability in 2008 and her date last insured was December 2013. She had a high school education and additional training as an x-ray technician and certified breath alcohol technician. She had past work experience as a physician's assistant and as a phlebotomist. At Step Two, the ALJ found that she suffers from degenerative lumbar disease and has undergone a lumbar laminectomy.

         Dr. Barry Politi performed a consulting examination of Fennell on August 26, 2013. Politi noted that Fennell complained of pain on rotation and palpation of the spine but sat easily for longer than 15-20 minutes. He noted that her gait was stiff but otherwise normal. Politi observed that she had no difficulty walking out to her car, bending and getting into the car, opening the door, and reaching for the seatbelt or driving wheel. His impression was lumbar spine surgery, low back pain, history of intracardiac ablation for supraventricular arrhythmia, right side shoulder surgery in the distant past, hypertension, chronic back pain, tobacco abuse, chronic bronchitis and chronic sinusitis. Politi stated there was some evidence of the plaintiff magnifying her symptoms. Based on his examination, Politi could not see why the claimant could not perform some type of work. He asked Fennell if she could do more sedentary or desk-type work, and reported that she said she could not. Politi did not provide a medical source statement regarding the plaintiff's function-by-function physical capacity.

         The record also contains reports from two disability determination doctors. Dr. Hulett reviewed the records and concluded that the plaintiff could return to her former employment but did not address plaintiff's specific physical capacities. Dr. James found that Fennell could perform medium work with postural limitations. The ALJ found that the plaintiff could perform what she called a full range of light work, though she proceeded to limit the scope with occasional postural limitations, and a finding that Fennell could not climb ladders, ropes or scaffolding. There was no testimony from a vocational expert. The ALJ determined at Step Four that the plaintiff could return to her past work as a physician's assistant and as a phlebotomist and that she was, therefore, not disabled as of the date of the decision.

         The plaintiff raised the following issues:

1. The ALJ's RFC finding is not supported by substantial evidence;
2. The ALJ violated Social Security Ruling 82-62 in finding that the plaintiff could return to her past relevant work;
3. The ALJ erred in assessing the plaintiff's credibility;
4. The ALJ erred in not discussing the plaintiff's husband's report; and
5. The ALJ failed to properly consider three MRI scan reports.

         The court addresses each argument below.


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