United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER
KEITH BALL, UNITED STATES MAGISTRATE JUDGE
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  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 , and Defendant's
Memorandum . The parties have consented to proceed before
the undersigned United States Magistrate Judge , and the
District Judge has entered an Order of Reference . 28
U.S.C. § 636(c); Fed.R.Civ.P. 73.
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.  at 179. 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.
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.
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.
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.
MEDICAL HISTORY, HEARING, AND DECISION
May 24, 2017, decision, the ALJ evaluated Ketchens's
impairments using the familiar sequential evaluation
process 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.
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.
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.
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
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.
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.
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
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.
STANDARD OF REVIEW
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).
DISCUSSION OF THE ALLEGED ERRORS AND APPLICABLE LAW
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
2. The ALJ did not adequately consider Plaintiff's 100%
VA disability rating; and
3. The Step 5 determination is not supported by substantial