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Washington v. Berryhill

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

June 8, 2018

GABRIELLE SAKARI WASHINGTON PLAINTIFF
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY DEFENDANT

          REPORT AND RECOMMENDATION

          ROBERT H. WALKER UNITED STATES MAGISTRATE JUDGE

         Counsel for Plaintiff Gabrielle Sakari Washington filed this action April 20, 2017, seeking judicial review of a decision denying Washington continued disability insurance benefits and supplemental security income (SSI) payments under Titles II and XVI of the Social Security Act. The issues presented for review are whether the Administrative Law Judge (ALJ) erred in obtaining consultative examinations before requesting information from Washington's medical sources; whether the ALJ failed to properly weigh the evidence from Washington's mental healthcare providers and DDS evaluators; whether the Appeals Council failed to evaluate new and material evidence Washington submitted on July 14, 2016 and December 22, 2016; and whether the ALJ erred in finding Washington worked until 2013, when the record states only that she worked until 2010 (the Commissioner's brief concedes this misstatement in the decision, but urges it was harmless).

         Facts and Procedural History

         On June 20, 2011, Gabrielle Washington was awarded disability and SSI benefits as of August 1, 2009. Washington was age 24 at the alleged August 1, 2009 onset of disability. [8, p. 56] Disability was based on findings of severe impairments of migraine headaches, left ventricular dysfunction, major depressive disorder and generalized anxiety disorder. [8, pp. 25, 136] The 2011 order recommended a continuing disability review in 24 months. [8, p. 140]

         Upon review on June 13, 2013, the Commissioner found Washington's condition had medically improved such that she was no longer disabled. [8, pp. 141-142, 145-146, 151-153] Washington requested a hearing. On October 30, 2015, ALJ Windell R. Owens heard the matter, receiving exhibits and hearing testimony from Washington and Vocational Expert Brenda White. The ALJ advised Washington of her right to have a representative present, the benefits of representation, and the availability of a continuance of the hearing should she desire to seek representation. Washington chose to waive her right to representation and proceed with the hearing. [8, pp. 50-52] On February 11, 2016, ALJ Owens issued a 19-page decision finding that Washington's disability ended as of June 30, 2013. [8, pp. 23-41]

         Under the Social Security Act, the Commissioner may terminate benefits for disability if substantial evidence demonstrates there has been medical improvement in the impairment(s) related to the ability to work, and the individual is now able to engage in substantial gainful activity (SGA). 42 U.S.C. § 423(f)(1); Griego v. Sullivan, 940 F.2d 942, 943-944 (5th Cir. 1991). Determination of whether one continues to be disabled involves an eight-step evaluation process for Title II claims, and a seven-step process applies to Title XVI claims. 20 C.F.R. §§ 404.1594(f) and 416.994(b)(5). Except for the initial step on the Title II claim (whether claimant is performing substantial gainful activity), the steps for the two evaluation processes are the same, i.e., whether claimant has an impairment or combination of impairments which meet or medically equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; whether medical improvement (decrease in medical severity of the impairment established by improvement in symptoms, signs and/or laboratory findings) has occurred; whether medical improvement is related to ability to work (resulting in increase in claimant's capacity to perform basic work activities); whether an exception to medical improvement applies; whether current impairments are severe (significantly limit ability to do basic work activities); the claimant's residual functional capacity based on current impairments and whether she can do past relevant work; and whether other work exists that claimant can perform. The ALJ used these evaluation processes in deciding Washington's claims.

         The ALJ found that as of June 30, 2013, Washington had not engaged in substantial gainful activity. The ALJ erroneously stated Washington testified she had worked as a part-time cashier at Target from 2001-2013, when she actually testified she worked at that job from 2001-2010. However, the ALJ noted during the hearing that Washington had not performed any work since 2010, and he concluded “as a matter of fact that [her] earnings never constituted SGA (substantial gainful activity) work activity.” [8, p. 57] The ALJ's decision found Washington had no past relevant work, and that her part-time work at Target “did not rise to the level of substantial gainful activity.” [8, p. 40] There is no issue before this Court regarding SGA.

         At the next two steps of the evaluation, the ALJ found Washington's current severe impairments established by the medical evidence are “non-ischemic cardiomyopathy with history of left ventricular dysfunction, occipital neuralgia with headache, history of asthma with mild pulmonary obstruction, diffuse arthralgia without evidence of significant bony abnormality, [1] sciatica, obesity and an adjustment disorder with anxiety and depression.” The ALJ found these impairments did not meet or medically equal the severity of a listed impairment, specifically considering Listings 1.02 (major dysfunction of a joint(s), 3.03 asthma, 12.04 affective disorders and 12.06 anxiety-related disorders. [8, pp. 25-26]

         The ALJ found there had been a decrease in medical severity of Washington's impairments, and that, as of June 30, 2013, she had the residual functional capacity to perform sedentary work with the following exceptions: avoid extremes of heat/cold and even moderate exposure to pulmonary irritants; no work from unprotected heights; occasional fine fingering with bilateral upper extremities; occasional stooping, kneeling, crouching, crawling, climbing stairs and ramps; no climbing ropes, ladders or scaffolds; can perform routine repetitive to detailed tasks but no complex tasks; occasional changes in the work setting; and no production rate pace work. [8, p. 5] Vocational Expert Brenda White testified there are available jobs in the national economy which fall within the above limitations. [8, pp. 87-89] The Appeals Council denied review February 14, 2017, which led to the filing of this action. [8, pp. 5-8]

         Standard of Review

         Judicial review of a final decision of the Commissioner of Social Security is limited to determining whether substantial record evidence supports the Commissioner's factual findings, and whether such findings are reached through the application of correct legal standards. Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005); Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a preponderance. Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000); Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990). The Court reviews the entire record to determine whether substantial evidence supports the Commissioner's decision. Villa, 895 F.2d at 1022. Credibility of witnesses and conflicts in the evidence are issues for resolution by the Commissioner, not the Court, nor may the Court not try the issues de novo, substitute its judgment for that of the Commissioner, or re-weigh the evidence. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1995; Audler v. Astrue, 501 F.3d 446, 447 (5th Cir. 2007); Harris, 209 F.3d at 417 (quoting Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995)); Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988) (a finding of “no substantial evidence” is appropriate only if no credible evidentiary choices or medical findings support the decision). Factual findings supported by substantial record evidence are conclusive and must be upheld. Estate of Morris v. Shalala, 207 F.3d 744, 745 (5th Cir. 2000); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The Court may reverse a decision of the Commissioner if it is based upon faulty legal analysis, but should accept the Commissioner's legal conclusions if they are within reasonable meanings of the statutory or regulatory language. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 841-44 (1984). Absent a finding that the decision is unsupported by substantial evidence or that the Commissioner applied an incorrect legal standard, the Court must affirm the administrative decision. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). The decision of the Commissioner is accorded great deference and “will not be disturbed unless the reviewing court cannot find substantial evidence in the record to support the ... decision or finds that the Commissioner made an error of law.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).

         Discussion

         Washington first urges the ALJ erred in obtaining consultative examinations before obtaining all her treatment records, citing as authority 20 C.F.R. § 404.1512(e). The cited regulation does not mandate the sequence and timing of obtaining evidence; it simply provides the general procedure, and states consultative examination evidence is not evaluated until the Commission has “made every reasonable effort to obtain evidence from” the claimant's medical sources. Washington has identified no evidence showing the ALJ evaluated the consultative examinations before considering the treatment records, nor has she shown any prejudice resulting from the order in which the ALJ obtained the evidence to develop the record. Washington's argument that the ALJ “affirmed” the June 2013 determination of “not disabled” before requesting evidence from Washington's own medical sources is belied by the record, [2] and the ALJ's thorough discussion of the evidence, including Plaintiff's treatment records. Unlike the Court, the ALJ's function is not an appellate one; the ALJ conducts a de novo hearing of the matter, as was done in Washington's case. The ALJ plainly stated before the hearing began that:

This case comes to me anew, meaning I'm not bound by any prior determination of the Agency. I'm an independent arbitrator, my job is to look at the evidence, consider it along with testimony, any factual legal arguments, as well as the ...

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