United States District Court, S.D. Mississippi, Northern Division
PROPOSED FINDINGS OF FACT AND RECOMMENDATION
H. WALKER, UNITED STATES MAGISTRATE JUDGE.
John Clark filed a complaint challenging the Commissioner of
Social Security's denial of his application for
disability insurance benefits and supplemental income. Doc.
. Plaintiff alleged disability beginning July 14, 2012,
due to asthma depression, anxiety, and neurological problems.
Doc.  at 148, 219. Plaintiff was 51 years old at the
alleged date of onset, with two years of college education
and certification in radio and TV repair. Id. at 68,
148. Plaintiff's previous work includes a composite job
at a casino, where he maintained slot machines and
reupholstered gaming tables. Id. at 108-10. He also
has worked as a quality control technician, furniture
assembler, maintenance mechanic, and lawn sprinkler
installer. Id. at 110. Plaintiff's application
was denied at the initial level and on reconsideration.
Id. at 188-205. Plaintiff requested and was granted
a hearing before an Administrative Law Judge (ALJ).
Id. at 62-117, 206-08.
March 31, 2015, the ALJ issued a decision denying
Plaintiff's application for benefits. Id. at
12-36. The ALJ found that Plaintiff had severe impairments of
degenerative disc disease, obesity, and essential
hypertension. Id. at 17. Of particular relevance to
the issues before the undersigned, the ALJ found that
Plaintiff did not have any severe mental impairments.
Id. at 18-19. The ALJ further concluded that
Plaintiff's impairments did not meet any of the
requirements for presumptive disability. Id. at
19-20. The ALJ determined that Plaintiff retained the
residual functional capacity (RFC) to perform light work,
including restrictions of no climbing ladders, ropes,
scaffolds, occasional climbing ramps/stairs; and no exposure
to unprotected heights/hazardous machinery. Id. at
20. Based on Plaintiff's RFC, the ALJ found that
Plaintiff could not perform any past relevant work.
Id. However, relying on the testimony of a
vocational expert, the ALJ concluded that Plaintiff could
perform jobs that exist in significant numbers in the
national economy. Id. at 30. Specifically, the ALJ
found that Plaintiff could perform the occupations of bench
assembler and electrical worker. Id. Accordingly,
the ALJ determined that Plaintiff was not disabled. The
Appeals Council denied Plaintiff's request for review.
Id. at 5-10. Plaintiff then filed the instant
motion for summary judgment, Plaintiff raises the following
issues: (1) whether substantial evidence supports the
ALJ's decision that Plaintiff's mental impairment is
not severe and does not affect his ability to work; (2)
whether the ALJ failed to properly evaluate the medical
opinion evidence from Plaintiff's treating physician, Dr.
Doug Perry; and (3) whether the ALJ properly assessed
Plaintiff's credibility. Doc.  . The Commissioner
has filed a motion to affirm and accompanying memorandum.
Doc.  .
federal district court reviews the Commissioner's
decision only to determine whether the final decision is
supported by substantial evidence and whether the
Commissioner used the proper legal standards to evaluate the
evidence. Brown v. Apfel, 192 F.3d 492, 496 (5th
Cir. 1999); Martinez v. Chater, 64 F.3d 172, 173
(5th Cir. 1995). If the court determines the
Commissioner's decision to be supported by substantial
evidence, then the findings are conclusive and the court must
affirm the decision. Richardson v. Perales, 402 U.S.
389, 390 (1971). See also 42 U.S.C. § 405(g).
This standard requires supporting evidence that is
“‘more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'”
Richardson, 402 U.S. at 401 (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). The court is not permitted to “reweigh the
evidence in the record, nor try any issues de novo, nor
substitute our judgment for the judgment of the
[Commissioner], even if the evidence preponderates against
the [Commissioner's] decision.” Johnson v.
Bowen, 864 F.2d 340, 343 (5th Cir. 1988).
“‘Conflicts in the evidence are for the
[Commissioner] and not the courts to resolve.'”
Brown, 192 F.3d at 496 (quoting Selders v.
Sullivan, 914 F.2d 614, 617 (5th Cir. 1990)). While the
court may alter the Commissioner's decision if based upon
faulty legal analysis, the court should defer to the
Commissioner's legal conclusions if they are within a
permissible meaning of the statutory or regulatory language.
Chevron, U.S.A., Inc. v. National Resources Defense
Council, 467 U.S. 837, 843-44 (1984).
claimant bears the burden of proving the existence of a
medically determinable impairment that has prevented the
claimant from engaging in substantial gainful employment. 42
U.S.C. § 423 (d)(1)(A); 42 U.S.C. § 423 (d)(5). The
Social Security Administration (SSA) utilizes a five-step
sequential process to determine whether a claimant is
disabled. 20 C.F.R. § 404.1520(a), § 404.920(a).
Under this analysis, the ALJ may decide a claimant is
disabled if he finds that (1) the claimant is not employed in
substantial gainful activity; (2) the claimant has a severe,
medically determinable impairment; (3) the claimant's
impairment meets or equals one of the listings in appendix 1
to subpart P of § 404; (4) the impairment prevents the
claimant from performing any past relevant work; and (5) the
impairment prevents the claimant's ability to adjust to
performing any other work. Id.
claimant initially bears the burden of proving disability
under the first four steps, but the burden shifts to the SSA
for the fifth step. Chapparo v. Bowen, 815 F.2d
1008, 1010 (5th Cir. 1987). Therefore, if the
claimant proves that he is unable to perform past relevant
work, the SSA must demonstrate that the claimant can perform
another occupation that exists in significant numbers in the
national economy. The burden then shifts back to the claimant
to establish that he cannot perform this alternative
argues that the ALJ did not properly determine that his
ability to work is not affected by a mental or emotional
impairment. In essence, Plaintiff argues that the ALJ's
decision regarding mental impairments is not supported by
substantial evidence. Plaintiff points out that Joseph Dunn,
Ph.D., a psychological consultative examiner concluded that
Plaintiff has symptoms of anxiety and depression and that a
personality disorder should be considered. Doc.  at 370.
Furthermore, state agency consultants diagnosed Plaintiff
with affective/mood disorders and anxiety related disorders.
Id. at 142-43, 180-81. Plaintiff also relies heavily
on the report of Bryman Williams, Ph.D. who concluded that
Plaintiff has limitations with respect to sustained
concentration and persistence. Id. at 154. According
to Dr. Williams, Plaintiff is moderately limited in his
ability to carry out detailed instructions and in his ability
to maintain attention and concentration for extended periods.
Id. Plaintiff argues that mental limitations should
have been included in the RFC based on the diagnoses and
functional limitations contained in the record.
regulations define a severe impairment as “any
impairment or combination of impairments which significantly
limits [one's] physical or mental ability to do basic
work activities.” 20 C.F.R. § 404.1520(c). A
“slight abnormality” is non-severe when it has
“such minimal effect on that individual that it would
not be expected to interfere with the individual's
ability to work.” Stone v. Heckler, 752 F.2d
1099, 1101 (5th Cir. 1985). In determining whether a
claimant's physical or mental impairments are of a
sufficient medical severity as could be the basis of
eligibility under the law, the ALJ is required to consider
the combined effects of all impairments without regard to
whether any such impairment, if considered separately, would
be of sufficient severity. See 20 C.F.R. §
404.1523; Loza v. Apfel, 219 F.3d 378, 393 (5th Cir.
2000). If the ALJ finds a medically severe combination of
impairments, “the combined impact of the impairments
will be considered throughout the disability determination
process.” 20 C.F.R. § 404.1523. Finally, it is
clear that the ALJ must consider all the record evidence and
cannot “pick and choose” only the evidence that
supports his position. Loza, 219 F.3d at 393-94
(citing Switzer v. Heckler, 742 F.2d 382, 385-86
(7th Cir.1984); Garfield v. Schweiker, 732 F.2d 605,
609 (7th Cir.1984); Green v. Shalala, 852 F.Supp.
558, 568 (N.D.Tex.1994); Armstrong v. Sullivan, 814
F.Supp. 1364, 1373 (W.D.Tex.1993)).
considering Plaintiff's mental conditions at step two,
the ALJ concluded that Plaintiff has only mild limitation in
the functional area of concentrations, persistence or pace.
Id. at 19. In support of this conclusion, the ALJ
relied on Dr. Dunn, who reported that Plaintiff's memory
appeared to be intact and that Plaintiff could perform
addition and subtraction. Id. at 370. The ALJ further
relied on Dr. Williams' conclusion that Plaintiff's
mental impairment was not severe. Id. at 152. The
ALJ noted that Dr. Williams inconsistently documented a
moderate limitation in concentration, persistence and pace.
Id. at 19. Based on this internal inconsistency, the
ALJ accorded only partial weight to Dr. Williams'
assessing Plaintiff's RFC, the ALJ also considered
whether Plaintiff had any non-exertional limitations due to
mental impairment. Id. at 27. The ALJ again noted
that Dr. Williams' assessment is internally inconsistent.
Id. The ALJ further found that the limitations in
concentration, persistence, and pace are not supported by
other corroborating evidence. Id. According to the
ALJ, the opinions of Dr. Williams and Dr. Dunn rely heavily
on Plaintiff's subjective complaints, which are not
detailed examination of Dr. Williams' report reveals even
more support for Plaintiff's position than was discussed
by the ALJ. Dr. Williams found that Plaintiff has moderate
difficulties in maintaining concentration, persistence or
pace. Id. at 153. Dr. Williams further indicated
that Plaintiff's impairments can reasonably be expected
to produce Plaintiff's symptoms. Id. at 154.
Moreover, Dr. Williams indicated that Plaintiff's
statements about the intensity, persistence, and functionally
limiting effects of the symptoms are substantiated by the
objective medical evidence alone. Id. According to
Dr. Williams, Plaintiff is moderately limited in his ability
to carry out detailed instructions, and moderately limited in
his ability to maintain attention and concentration for
extended periods of time. Id. Plaintiff also is
moderately limited in his ability to work in coordination
with or in proximity to others without being distracted by
them. Id. at 155. Dr. Williams ...