United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
R. ANDERSON UNITED STATES MAGISTRATE JUDGE
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.
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.
one of the five-step sequential evaluation,  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.
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.
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.
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.
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.
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.
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.
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.” 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
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).
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.
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, ...