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Towner v. Berryhill

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

July 17, 2019

RONNIE TOWNER PLAINTIFF
v.
NANCY BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY DEFENDANT

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          LINDA R. ANDERSON UNITED STATES MAGISTRATE JUDGE

         Plaintiff appeals the final decision denying his applications for a period of disability, disability insurance benefits (“DIB”), and supplemental security income (“SSI). The Commissioner requests an order pursuant to 42 U.S.C. §405(g), affirming the final decision of the Administrative Law Judge. Having carefully considered the hearing transcript, the medical records in evidence, and all the applicable law, the undersigned recommends that this cause be remanded.

         In November 2014, Plaintiff filed initial applications for SSI and DIB alleging a disability onset date of September 18, 2013, due to heart problems, diabetes, and high blood pressure. He was 45 years old on his alleged onset date, with a twelfth-grade education and past relevant work experience as a forklift operator. Following agency denials of his application, an Administrative Law Judge (“ALJ”) rendered an unfavorable decision finding that he had not established a disability within the meaning of the Social Security Act. The Appeals Council denied Plaintiff's request for review. He now appeals that decision.

         At step one of the five-step sequential evaluation, [1] the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date. At steps two and three, the ALJ found that although Plaintiff's cardiac disorders, right knee osteoarthritis, degenerative joint disease, and post-stroke weakness were severe, they did not meet or medically equal any listing. The ALJ additionally found that Plaintiff's depressive, mood, and anxiety disorders were not severe. At step four, the ALJ found that Plaintiff had the residual functional capacity to perform light unskilled work, with the following limitations. He can:

lift or carry 20 lbs. occasionally and 10 lbs. frequently, stand or walk for 3 hours of an 8-hour day for 15 minutes at a time, and sit for 6 hours of an 8hour day for 2 hours at a time. The claimant also can occasionally stoop or climb; cannot crouch, kneel, or crawl; can push or pull less than 10 lbs. with the right upper extremity and right lower extremity; can occasionally reach overhead with the right upper extremity; has occasional numbness in the right upper extremity during which he cannot feel texture; and must avoid heights, hazardous machines, ladders, and commercial driving. In addition, the claimant is illiterate.[2]

         Based on vocational expert testimony, the ALJ concluded that given Plaintiff's age, education, work experience, and residual functional capacity, he could perform work as a wire-worker, inspector-checker, and assembler.

         Standard of Review

         Judicial review in social security appeals is limited to two basic inquiries: (1) whether there is substantial evidence in the record to support the ALJ's decision; and (2) whether the decision comports with relevant legal standards. Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996) (citing Carrier v. Sullivan, 944 F.2d 243, 245 (5th Cir. 1991)). Evidence is substantial if it is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion; it must be more than a scintilla, but it need not be a preponderance. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995) (quoting Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992)). This Court may not re-weigh the evidence, try the case de novo, or substitute its judgment for that of the ALJ, even if it finds evidence that preponderates against the ALJ's decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994).

         Discussion

          Plaintiff alleges that errors were made at steps two and five of the sequential evaluation that warrant reversal or remand of this case. He alleges the ALJ erred in failing to find his depressive, anxiety and mood disorders were severe at step two. He also charges that the ALJ's step-five finding is unsupported because he failed to resolve the conflict between the vocational expert's testimony and the Dictionary of Occupational Titles (“DOT”) in violation of Social Security Policy Interpretation Ruling (“SSR”) 00-4p, 2000 WL 1898704, at *2. The undersigned addresses each of these in turn.

         1.

         At step two of the sequential evaluation, the ALJ concluded that Plaintiff's depressive, anxiety, and mood disorders were not severe because Plaintiff failed to make a de minimis showing of severity in the four broad areas of mental functioning: (1) understanding, remembering or applying information; (2) concentration, persisting, or maintaining pace; (3) interacting with others; and, (4) adapting or managing oneself. Although the ALJ found there was insufficient evidence of limitations in each of these areas, it is the ALJ's determination concerning the first two that Plaintiff contests.

         Plaintiff submits that the ALJ's conclusion that he has no limitations in remembering information or maintaining concentration is contradicted by his records from Weems Community Mental Health Center - his primary mental health provider. He notes that of his 17 dates of mental health treatment, in the ten visits where objective findings were made regarding concentration, it was rated as “intact” only once and poor the remaining nine times, with Plaintiff self-reporting difficulties the rest of the time. His memory was also rated “poor” the majority of the time. Notwithstanding this evidence, Plaintiff charges the ALJ selectively chose only the evidence that supported his position in contravention of controlling precedent and social security rulings and regulations. Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000).[3]

         It is well-established law that while an ALJ is not required to discuss every piece of evidence in evaluating a disability claim, he may not ignore probative evidence. Id. at 393; see also Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007). However, the mere diagnosis of an impairment is insufficient to establish severity. “[A]n impairment is severe if it is anything more than a ‘slight abnormality' that ‘would not be expected to interfere' with a claimant's ability to work. Salmond v. Berryhill, 892 F.3d 812, 817 (5th Cir. 2018) (quoting Stone v. Heckler, 452 F.2d 1099, 1101 (5th Cir. 1985) (internal quotation marks omitted)). At step two of the sequential evaluation, the claimant bears the burden of proving not only that he has been diagnosed with a medically determinable impairment, but that it also affects his ability to do basic work activities. Brunson v. Astrue, 387 Fed.Appx. 459, 461 (5th Cir. 2010) (per curiam). The relevant inquiry is “whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached by the ALJ.” Loza, 219 F.2d at 393.

         The ALJ's severity analysis acknowledges that Plaintiff “exhibited poor concentration on occasions during the period under consideration” but such evidence must be considered in the context of the record as a whole. He explained that “[a]lthough claimant's treatment records indicate that the claimant exhibited some concentration problems from October of 2013 to March 2014, the claimant's treatment records from other times during the period under consideration indicate he displayed normal mental findings and make no mention of difficulty in concentrating.”[4] He then goes on to note that:

Otherwise, the claimant's treatment records document findings such as appropriate affect, appropriate speech, cooperative attitude, logical thought content, normal perception, no impairment of self-concept, full orientation, intact judgment, alertness, normal affect, and normal insight. Therefore, the symptoms indicated during the aforementioned period did not persist throughout the period under consideration, and findings from throughout the bulk of the period under consideration support the conclusion that the claimant has experienced no significant and persistent mental restrictions.[5]

         Having reviewed the record carefully, including those highlighted in Plaintiff's memorandum brief, the undersigned finds no basis in the ALJ's reasoning or interpretation of the evidence to warrant reversal or remand. “The fact that there may have been some contrary evidence in the record to support a finding that [Plaintiff's depression] was a severe impairment does not undermine the ALJ's determination.” Bayer v. Colvin, 557 Fed.Appx. 280, 287-288 (5th Cir. 2014).

         There is no dispute that Plaintiff has not pursued or required ongoing mental health treatment since March 2014. A claimant's failure to maintain treatment is a relevant factor to consider in determining the severity of an alleged impairment and may be used in conjunction with the medical reports to discount complaints of disabling pain. Doss v. Barnhart, 137 Fed.Appx. 689, 690 (5th Cir. 2005); Griego v. Sullivan, 940 F.2d 942, 945 (5th Cir. 1991). Moreover, despite Plaintiff's reports of memory and concentration problems, the ALJ noted that he was able to persist and concentrate during the administrative hearing. These are “precisely the kinds of determinations that the ALJ is best positioned to make, ” as he or she can observe the claimant first-hand. Olguin v. Barnhart, 31 Fed.Appx. 838 (5th Cir. 2002); Falco v. Shalala, 27 F.3d 160, 164 (5th Cir. 1994). Plaintiff also failed to mention a mental health disorder as a reason for his inability to work at the administrative hearing, nor list it as a basis for disability in his applications. Lastly, no examining or treating source of record concluded that Plaintiff's mental disorders would be expected to interfere with his ability to work.

         The undersigned is mindful that the severity threshold requires the claimant to make a fairly de minimis showing, but “[w]e do not “reweigh the evidence or substitute [our] judgment for the Commissioner's.” Botsay v. Colvin, 658 Fed.Appx. 715, 717 (5th Cir. 2017) (quoting Perez v. Barnhart,415 F.3d 457, ...


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