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Hines v. Berryhill

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

May 9, 2018

EARNEST L. HINES, JR. PLAINTIFF
v.
NANCY BERRYHILL Commissioner of Social Security Administration DEFENDANT

          REPORT AND RECOMMENDATION

          Michael T. Parker United States Magistrate Judge

         Plaintiff Earnest L. Hines, Jr. brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social Administration denying his claim for disability insurance benefits. This matter is now before the Court on Defendant's Motion to Affirm the Commissioner's Decision [21]. Having considered the parties' submissions, the record, and the applicable law, the undersigned recommends that the Motion to Affirm the Commissioner's Decision [21] be granted in part and denied in part and that this matter be remanded for further consideration.

         PROCEDURAL HISTORY

         On May 1, 2013, Plaintiff applied for disability insurance benefits, alleging disability due to post-traumatic stress disorder (“PTSD”), migraines, sinus issues, neck pain, nausea and dizziness associated with vertigo, high cholesterol, depression, high blood pressure, and eye problems. (Administrative Record [14] at 114-17, 135). After the agency denied Plaintiff's claim, an Administrative Law Judge (“ALJ”) held a hearing. ([14] at 10-30). On March 13, 2015, the ALJ issued a decision finding that Plaintiff was not disabled. ([14] at 50-55). On June 13, 2016, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. ([14] at 6-8). Plaintiff now seeks judicial review in this Court under 42 U.S.C. § 405(g).

         ADMINISTRATIVE LAW JUDGE'S DECISION

         In his March 13, 2015, decision, the ALJ applied the five-step sequential analysis set forth in 20 C.F.R. § 404.1520(b)-(f)[1] and determined that Plaintiff was not disabled. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity during the period from his alleged disability onset date, October 31, 2007, through his date last insured, December 31, 2012.[2] At step two, the ALJ found Plaintiff had the following medically determinable impairments: vertigo, headaches, and mild anxiety. The ALJ, however, determined that, through the date last insured, Plaintiff did not have an impairment or combination of impairments that significantly limited the ability to perform basic work-related activities for twelve consecutive months and, therefore, did not have a severe impairment or combination of impairments pursuant to 20 C.F.R. § 404.1521 et seq. Accordingly, the ALJ found that Plaintiff was not disabled. ([14] at 52-55).

         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 v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988). 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 three issues for review: (1) whether the ALJ properly evaluated all medical opinions of record; (2) whether substantial evidence and proper legal standards support the ALJ's residual functional capacity finding; and (3) whether the ALJ properly assessed the credibility of Plaintiff's subjective complaints.

         Issue 1: Whether the ALJ Properly Evaluated All Medical Opinions of Record

         Plaintiff argues that the ALJ erred in his consideration of the medical opinions of record by (1) failing to properly consider Plaintiff's disability rating from the Veteran's Administration (“VA”); (2) failing to properly consider his impairment of PTSD and the medical evidence demonstrating the severity of the impairment; (3) failing to consult a medical advisor to determine the Plaintiff's disability onset date; and (4) relying on Plaintiff's symptom-free intervals to support his finding that Plaintiff's impairments were not severe.

         In his decision, the ALJ pointed out that Plaintiff's alleged disability onset date was October 31, 2007, and his date last insured was December 31, 2012. The ALJ noted that much of “the medical evidence of record either post-dates [Plaintiff's] date last insured . . ., or consists largely of significantly older treatment notes, with little medical care reported during the relevant period for his allegedly disabling conditions.” ([14] at 53). Thus, the ALJ primarily focused on two consultative examination reports, which were completed during the relevant time period. ([14] at 53-54; 189-92; 193-95). The ALJ also considered two disability determination services assessments. ([14] at 31-37).

         Included in the evidence which the ALJ found to be irrelevant were records from the VA. Plaintiff points to records which reveal that the VA gave Plaintiff a disability rating of 70% connected to his PTSD, a disability rating of 50% connected to his migraines, and a total service connected disability rating of 90%. ([18] at 19; [14] at 628).[3] Plaintiff argues that the ALJ erred by not giving these VA disability ratings great weight and by failing to specifically state the reasons he rejected the disability ratings.

         Defendant argues that a VA disability rating does not establish a severe impairment. Defendant also points out that the social security regulations were revised in 2017 and now make clear that an ALJ need not provide any analysis of a VA disability rating. The new rule states that “in claims filed . . . on or after March 27, 2017, we will not provide any analysis in our determination or decision about a decision made by any other governmental agency or a nongovernmental entity about whether you are disabled . . . .” 20 C.F.R. § 404.1504. However, because Plaintiff filed his claim for benefits prior to March 27, 2017, the new rule is ...


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