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Herrmann v. Commissioner of Social Security

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

July 27, 2018




         Charles T. Herrmann has appealed the decision of the Social Security Administration denying his application for benefits. The Administrative Law Judge determined that Herrmann's degenerative lumbar disc disease, mood disorder, and history of alcohol abuse were severe impairments, but that he was able to perform a full range of unskilled medium work. Though the ALJ found that Herrmann was suffering from severe nonexertional impairments, rather than relying on a vocational expert, the ALJ determined at Step Five that Herrmann was not disabled pursuant to the Medical-Vocational guidelines. Claimant asserts multiple errors in the decision.


         A claimant has the burden of proving he suffers from a disability, which the Social Security Act defines as a mental or physical impairment, lasting at least a year, which precludes him from substantial gainful activity. The relevant analysis proceeds in five steps: the Commissioner considers whether (1) the claimant is currently engaged in substantial gainful activity, (2) he has a severe impairment, (3) the impairment meets the severity of an impairment enumerated in the relevant regulations, (4) it prevents the claimant from performing past relevant work, and (5) it prevents him from doing any relevant work. 20 C.F.R. § 404.1520; Masterson v. Barnhart, 309 F.3d 267, 271 (5th Cir. 2002). If the claimant survives the first four stages, the burden shifts to the Commissioner on the fifth step to prove the claimant's employability. Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). A finding at any step that the claimant is not disabled ends the inquiry. Chaparro v. Bowen, 815 F.2d 1009, 1010 (5th Cir. 1987).

         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 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 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. 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 conclusive and must be upheld. Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994).


         In denying benefits, the ALJ found that claimant had not engaged in substantial gainful activity since May 21, 2014, the amended alleged onset date of disability. At Step Two, the ALJ found Herrmann's degenerative lumbar disc disease, mood disorder, and history of alcohol abuse[1] were severe impairments.

         The ALJ found that Herrmann had the residual functional capacity to perform a full range of unskilled medium work, noting that he was “able, on a sustained basis, to understand, remember, and carry out simple instructions, make simple work related decisions, respond appropriately to supervisors, coworkers, usual work situations and deal with changes in a routine work setting.”[2]

         The ALJ noted that claimant, on multiple occasions, testified he had no physical limitation that would affect his ability to work and that he was able to perform a wide range of physically demanding activities including walking his dog, riding his bike, mowing the yard, and cleaning the gutters. Instead, Herrmann alleged he was unable to work due to anxiety, depression, manic-depression, and a chemical imbalance-all manifesting in frequent panic attacks of long durations. Claimant underwent inpatient psychological treatment in November 2013, when he was diagnosed with a mood disorder. However, subsequent treatment notes indicate his condition was overall stable, with a full affect, normal psychomotor activity, euthymic (normal) mood, and intact thoughts. Most significantly, Herrmann testified that since he stopped drinking and started taking his medications as prescribed his panic attacks had largely subsided. See Tr. 133 (“I used to have them about every-two or three times a week. Now I do good if I have one a week.”). When asked how long his weekly panic attacks lasted “start to finish, ” he replied, “Just 20 or 30 seconds.” Herrmann testified he walked “up and down the street” or “around the block or two” to calm down and curb his panic attacks.

         At Step Four, the ALJ found that Herrmann could not return to his past relevant work as an electrician's assistant, which was classified as semi-skilled, and therefore exceeded his RFC. Finally at Step Five, the ALJ found that Herrmann was not disabled relying solely on the Medical-Vocational Guidelines. 20 CFR 416.969.


         1. The First Two Assignments of Error

         While claimant raises three issues on appeal, the first two are either without merit or constitute harmless error. These assignments need only be addressed briefly.

         Herrmann first asserts the ALJ erred in closing the hearing without asking claimant or his representative if they had any additional evidence to submit. See HALLEX I-2-6-78. However, claimant concedes in his brief that “there was no further medical evidence available to substantiate his complaints.” Claimant has thus failed to show that he was prejudiced by the ALJ's failure to inquire as to any additional evidence. See Shave v. Apfel, 238 F.3d 592, 597 (5th Cir. 2001) (“This Court requires, however, a showing that claimant was prejudiced by the agency's failure to follow a particular rule before such a failure will be permitted to serve as the basis for relief from an ALJ's decision.”).

         Claimant next contends the ALJ erred in evaluating his panic attacks. He takes issue with the ALJ and his attorney not inquiring into what limitations, if any, his panic attacks inflicted on him throughout the day. Nevertheless, claimant testified succinctly that his panic attacks, which occurred at most once a week, lasted-from start to finish-approximately twenty to thirty seconds. While it is unclear whether he walked “up the street” or “around the block” to ward off further attacks or to alleviate an attack upon onset, the record supports the ALJ's findings that claimant's panic attacks were well-controlled and non-disabling. Moreover, Dr. Baymiller observed normal speech, memory, behavior, orientation, concentration, associations, thought process, ...

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