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Pleas v. Commissioner of Social Security

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

November 6, 2018




         Frankie Pleas has appealed the decision of the Social Security Administration denying his application for disability benefits and supplemental security income. The ALJ determined his severe impairments and found Pleas could only perform a limited range of light work. Among other limitations, a remote hand injury meant that he was limited to occasional handling and fingering in his dominant upper right extremity. The ALJ found that Pleas could no longer perform his past relevant work as a truck unloader, forklift operator or warehouse worker because each was performed at a heavy or medium level of exertion. The vocational expert testified that an individual with the plaintiff's vocational profile could work as a photocopy operator, retail attendant and a fast food worker. The ALJ determined that Pleas was not disabled. The plaintiff has appealed assigning three errors: the ALJ's evaluation of a physician assistant's opinion; failure to order a consultative physical examination; and failure to resolve a conflict between the testimony of the vocational expert and the Dictionary of Occupational Titles.


         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, that 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, Richardson v. Perales, 402 U.S. 389, 401 (1971), and whether the correct legal standards were applied. 42 U.S.C. § 405 (g.); Falco v. Shalala, 27 F.3d 160, 162 (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, Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988), even if it finds that the evidence preponderates against the Commissioner's decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); 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 a conclusive and must be upheld. Perales, 402 U.S. at 390.


         The ALJ denied Frankie Pleas' application at Step Five. The ALJ found the claimant met the insured status requirements and had not engaged in substantial gainful activity after the end of March 2014. At Step Two, the ALJ found the plaintiff's hypertension, sarcoidosis, remote hand injury and gout were severe impairments. At Step Three, he found that Pleas had no impairment or combination of impairments that met or equaled a listing. The ALJ found the plaintiff could perform a limited range of light work. While he assessed other limitations, for the purposes of this appeal, the only significant limitation was the ALJ's finding that Pleas could only occasionally handle or finger with his right upper extremity. Based on the testimony of the vocational expert, the ALJ determined at Step Four that Pleas could no longer perform his past relevant work.

         In order to make the Step Five determination, the ALJ elicited testimony from the VE about whether other jobs existed in the national economy that Pleas could still perform. The VE testified that an individual with Pleas' residual functional capacity could work as a photocopy operator, a retail attendant and a fast food worker -- all light, unskilled jobs. The VE also answered that his testimony was consistent with the Dictionary of Occupational Titles (DOT). After finding that the VE's testimony was consistent, the ALJ found Pleas was not disabled, a decision subsequently affirmed by the Appeals Council, and therefore the final decision of the Commissioner.


         1. Evaluation of Physician Assistant's Opinion Evidence

         The plaintiff submitted a medical source statement from his treating physician assistant, Billy J. Brown, and complains that the ALJ failed to properly evaluate and weigh this information. Brown found Pleas could not lift or carry ten pounds with his dominant hand. The ALJ disagreed, though he restricted Pleas to light work and found he could only occasionally handle and finger on the right upper extremity. The plaintiff argues that the ALJ erred in the evaluation of this medical source statement.

         The ALJ must consider the information from all medical sources, including those from sources such as physician assistants that are not acceptable medical sources, SSR 06-3, 2006 WL 2329939. But the ALJ's decision does discuss Brown's opinions in some detail. The ALJ found that the opinions were not supported by the medical evidence. The ALJ noted that the treatment with Brown did not span a long period of time. While the treatment records show a series of visits over a one-year period, the primary emphasis during this treatment was on the plaintiff's hypertension, not his right-hand injury. Brown does not explain his findings nor do his records record any testing or clinical findings consistent with his opinions. The records do note, however, the history of the injury and the plaintiff's sporadic complaints of pain and being unable to bend the hand normally. The court finds that Brown's opinions were appropriately considered; the decision-making adequately explained; and the RFC supported by substantial evidence.

         2. Failure to Order a consultative examination

         The plaintiff also contends the ALJ committed error when he failed to order a consultative physical examination (CE). The decision to order or forgo a CE at the hearing level is committed to the discretion of the ALJ. A CE must be ordered if there is insufficient evidence in the record determine disability, vel non, or if an examination is necessary to resolve conflicts in the medical records. 20 C.F.R. § 404.1519a(a) and (b), and 20 C.F.R. § 416.919 a(a) and (b). Here the ALJ determined there was sufficient evidence to make the determination. The treatment records do not support the degree of impairment in the right hand claimed by the plaintiff in his testimony or the opinion of the physician assistant. The plaintiff's other objective findings were relatively benign when he was medically compliant. The court finds there was sufficient evidence in ...

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