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Ketchens v. Berryhill

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

March 20, 2019




         This cause is before the Court regarding the appeal by Dedra Ketchens of the Commissioner of Social Security's final decision denying her application for a period of disability and Disability Insurance Benefits (“DIB”). In rendering this Memorandum Opinion and Order, the Court has carefully reviewed the Administrative Record [8] regarding Ketchens's claims (including the administrative decision, the medical records, and a transcript of the hearing before the Administrative Law Judge ("ALJ")), Plaintiff's Memorandum [13], and Defendant's Memorandum [15]. The parties have consented to proceed before the undersigned United States Magistrate Judge [9], and the District Judge has entered an Order of Reference [10]. 28 U.S.C. § 636(c); Fed.R.Civ.P. 73.


         Ketchens filed her application for a period of disability and DIB on September 15, 2016, and alleged a disability onset date of November 14, 2014, when she was nearly forty-five years of age. [8] at 179.[1] She was last insured on December 31, 2015. Id. at 97. In her application, she alleged that she was disabled due to fibromyalgia, radiculopathy, neuropathy, major depressive disorder, irritable bowel syndrome, diverticulitis, neurological spinal disc disease, and bladder disorder. Id. at 135-136. At the time of her application, she was five feet, seven inches tall, and weighed one hundred sixty-eight pounds. Id. at 135.

         Ketchens was born on December 15, 1969, and completed four years of college, graduating in 2006 with a degree in information technology. Id. at 107, 179. She served as a yeoman in the U.S. Navy from April 1, 1996, to October 31, 1999. Id. at 179, 209. After completing her service, she worked nearly twenty years as a civilian contractor/computer programmer for the Navy, until she suffered an unspecified injury in 2007. Id. at 107-109, 209. On November 1, 2007, she filed for DIB and was denied benefits. Id. at 109. Thereafter, in 2011, 2013, and 2014, Ketchens worked sporadically as a quality control manager/computer manager with a private construction company that performed projects for the Army Corps of Engineers. Id. at 109-111.

         Ketchens is married. Id. at 103. In December 2015, she adopted her great-niece and two great-nephews, ages 3, 4, and 11, from the foster care system in Louisiana. Id. at 103-105, 564. The children's foster mother, Ketchens's husband, her two sisters, her two brothers, and a neighbor participate in the care of the children and assist in running the household. Id. at 104-105.

         The Social Security Administration denied Ketchens's application initially and upon reconsideration. Ketchens requested a hearing, which was held on April 20, 2017, in Hattiesburg, Mississippi, at which she was represented by counsel, and a vocational expert testified. Id. at 93. On May 24, 2017, the ALJ issued a decision finding that Ketchens was not disabled. Id. at 11- 26. The Appeals Council denied her request for review on July 31, 2017, id. at 1, and this appeal followed.


         In his May 24, 2017, decision, the ALJ evaluated Ketchens's impairments using the familiar sequential evaluation process[2] and found that she has the severe impairments of lumbar and cervical degenerative disc disease, right shoulder degenerative joint disease; bilateral carpal tunnel syndrome; headaches, and depression. (20 C.F.R. §§ 404.1520(c)). Id. at 14. The ALJ determined that the medical evidence did not support a diagnosis of fibromyalgia. Id. At the next step, the ALJ determined that Ketchens does not have an impairment or combination of impairments that meets or medically equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 15.

         The ALJ specifically found that Ketchens's mental impairment did not meet or medically equal the criteria of Listing 12.04. Id. The ALJ did not analyze the paragraph A criteria, but found that she failed to satisfy either paragraph B or C criteria. Id. He found that she had moderate limitations in the areas of understanding, remembering, or applying information; interacting with others; and the ability to concentrate, persist, or maintain pace. Id. Finally, he found that Ketchens has mild limitations in her ability to adapt or manage herself. Id. at 16.

         As for paragraph C criteria, the ALJ acknowledged that Ketchens's mental impairments have persisted for more than two years and that she received treatment in the form of outpatient therapy and outpatient medication management. Id. The ALJ concluded, however, that the evidence failed to show that she had achieved only marginal adjustment, i.e., “only a minimal ability to adapt to changes in her environment and daily life.” Id. The ALJ pointed to several factors as bases for his decision: Ketchens's adoption and care for the children, her ability to drive them to and from daycare and school, and her ability to attend her own doctors' appointments and relay her medical history without problems. Id. He noted, furthermore, that no State agency psychological consultant concluded that her condition met or equaled a medical listing. Id.

         The ALJ found that Ketchens has the residual functional capacity to perform light work as defined by 20 C.F.R. § 404.1567(b), with the following limitations: she could perform occasional climbing ramps/stairs, overhead reaching on the right, stooping, kneeling, crouching, and crawling. Id. at 16. She must avoid unprotected heights and dangerous machinery. Id. She could perform simple, routine tasks and tolerate occasional contact with the public. Id.

         In making the determination of Ketchens's RFC, the ALJ recounted her testimony regarding her major depressive disorder, her limited daily activities and the assistance she receives from others for care of the children, her 100% disability rating from the Veterans Administration (“VA”), her chronic pain and migraine headaches, her treatment for fibromyalgia from the VA, her limited ability to walk without aid of a walker, her ten-year history of epidural injections for back pain, her depression, her diverticulitis and internal bleeding, and her treatment for esophageal stricture. Id. at 17-20. The ALJ reviewed the medical records and noted her long history of treatment for lower back pain, and her treatment for bilateral carpal tunnel syndrome. Id. at 20-21. The ALJ observed that in March 2015 she underwent arthroscopic superior labral repair, right arthroscopic capsular shift, right shoulder drill chondroplasty, and right shoulder arthroscopic bursectomy, with “good” rehabilitation potential. Id. at 21.

         After considering her testimony and the medical records, however, he concluded that her medically determinable impairments could reasonably be expected to cause the alleged symptoms, but her statements concerning the intensity, persistence, and limiting effects of the symptoms are not entirely consistent with the medical evidence and other evidence in the record. Id. at 20. The ALJ discounted the physical residual functional capacity questionnaire submitted by her long-time treating physician, Dr. Gilo Kawasaki, because the questionnaire was dated March 10, 2017, and did not indicate whether the opinions applied to Ketchens's condition prior to December 31, 2015, the date she was last insured. Id. at 23. The questionnaire described her prognosis as poor and concluded that she had great limitations in her ability to work due to her daily pain caused by her degenerative disc disease of her cervical and lumbar spine, as well as her depression and decreased use of her hands, fingers, and arms. Id. at 904-907. The ALJ also found, without discussion or elaboration, that it was inconsistent with the evidence prior to that date. Id. at 23.

         Likewise, the ALJ discounted the opinion of Ketchens's VA treating psychiatrist, Dr. Jayaprabha Nair, and gave it “little weight” because the opinion was dated February 15, 2017. Id. at 23, 775-776. The ALJ supported this conclusion by noting that Ketchens had only seen her for “several months.” Id. at 23. He reached this determination despite record evidence of her several-year treatment for major depressive disorder with the VA. Id. at 913. Furthermore, Dr. Nair's short-term treatment of Ketchens was due to the retirement of her long-term treating VA psychiatrist after her last visit with him in December 2015. Id. at 914. The ALJ also acknowledged the VA's determination that Ketchens is 100% disabled, but concluded, without discussion, that the VA's decision is not binding on the Social Security Administration.

         Considering this evidence, the ALJ concluded that Ketchens was unable to perform her past relevant work as a computer programmer and construction project manager. Id. at 24. At age 46 on December 31, 2015, the date she was last insured, the ALJ found that she was a “younger individual, ” with at least a high school education. Id. at 24. Consulting the Medical-Vocational Rules as a framework, the ALJ concluded that she is not disabled. Id. Considering her residual functional capacity, and consulting with a vocational expert, the ALJ concluded that Ketchens could perform the jobs of poultry worker, cleaner, and small parts assembler. Id. at 25. Each of these jobs was light in exertional demand with a specific vocational preparation of 2. Id. Thus, the ALJ concluded that Ketchens was not under a disability from November 14, 2014, her alleged onset date, through December 31, 2015, the date she was last insured. Id.


         This Court's review is limited to an inquiry into whether there is substantial evidence to support the Commissioner's findings, Richardson v. Perales, 402 U.S. 389, 390, 401 (1971), and whether the correct legal standards were applied, 42 U.S.C. § 405(g) (2006). Accord Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). The Fifth Circuit has defined the “substantial evidence” standard as follows:

Substantial evidence means 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. It 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.”

Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983). In applying the substantial evidence standard, the Court must carefully examine the entire record, but must refrain from re-weighing the evidence or substituting its judgment for that of the Commissioner. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). Conflicts in the evidence and credibility assessments are for the Commissioner and not for the courts to resolve. Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). Hence, if the Commissioner's decision is supported by the evidence, and the proper legal standards were applied, the decision is conclusive and must be upheld by this Court. Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994), overruled on other grounds, Sims v. Apfel, 530 U.S. 103 (2000).


         Plaintiff argues that the ALJ's decision is unsupported by substantial evidence, should be reversed, and should be remanded for a hearing based on the following reasons:

1. The Step 3 determination is not supported by substantial evidence;
2. The ALJ did not adequately consider Plaintiff's 100% VA disability rating; and
3. The Step 5 determination is not supported by substantial ...

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