United States District Court, N.D. Mississippi, Oxford Division
CHARLES T. HERRMANN PLAINTIFF
COMMISSIONER OF SOCIAL SECURITY DEFENDANT
A. SANDERS UNITED STATES MAGISTRATE JUDGE
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.
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).
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
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 were severe
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.”
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.
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.
The First Two Assignments of Error
claimant raises three issues on appeal, the first two are
either without merit or constitute harmless error. These
assignments need only be addressed briefly.
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.”).
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, ...