United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER
H. WALKER UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff Richard Nathan Roe's complaint
seeking review of the Commissioner of the Social Security
Administration's (Commissioner) denial of Plaintiff's
claim for disability insurance benefits. Plaintiff filed an
application alleging disability beginning October 18, 2016,
due to tinnitus, post-traumatic stress disorder (PTSD),
impairment of the clavicle or scapula, limited flexion of the
knee, degenerative arthritis of the spine, anxiety,
depression, and insomnia. Doc.  at 14, 131, 167.
Plaintiff was 38 years old at the date of the alleged onset
of disability. Id. at 24. He graduated high school;
completed two years of college; and has past relevant work as
a maintenance worker, gate guard, and construction worker.
Id. at 24, 168.
application was denied initially and on reconsideration.
Id. at 75-84. He requested and was granted a hearing
before an Administrative Law Judge (ALJ). Id. at
31-60. The ALJ conducted a hearing on February 2, 2018, at
which hearing Plaintiff and a vocational expert testified.
Id. The ALJ issued an unfavorable decision on
February 16, 2018. Id. at 14-26. The ALJ found that
Plaintiff had severe impairments of degenerative disc
disease, degenerative joint disease, and PTSD. Id.
at 16. However, the ALJ determined that Plaintiff maintained
the residual functional capacity (RFC) to perform light work,
except that he must never climb ladders, ropes and scaffolds.
Id. at 18. He is limited to routine repetitive tasks
with no interaction with the general public and only
occasional interaction with coworkers, but he can be in close
proximity to coworkers. Id. The ALJ concluded that
Plaintiff is not capable of performing past relevant work.
Id. at 24. Relying in part on the testimony of a
vocational expert, the ALJ found that Plaintiff is capable of
performing jobs that exist in significant numbers in the
national economy; namely silver wrapper, advertising
distributor, and photocopy machine operator. Id. at
24-25. Accordingly, the ALJ concluded that Plaintiff is not
disabled as defined by the Social Security Act. Id.
filed a brief arguing that the decision of the Commissioner
should be reversed because (1) the ALJ failed to assign
controlling weight to Plaintiff's treating psychologist
(Desmon C. Mitchell, Ph.D); and (2) the ALJ's RFC was not
supported by substantial evidence. Doc. . Following a
brief stay of the case, the Commissioner filed a motion to
affirm on April 10, 2019. Doc. .
federal district court reviews the Commissioner's
decision only to determine whether the final decision is
supported by substantial evidence and whether the
Commissioner used the proper legal standards to evaluate the
evidence. Brown v. Apfel, 192 F.3d 492, 496 (5th
Cir. 1999); Martinez v. Chater, 64 F.3d 172, 173
(5th Cir. 1995). If the court determines the
Commissioner's decision to be supported by substantial
evidence, then the findings are conclusive and the court must
affirm the decision. Richardson v. Perales, 402 U.S.
389, 390 (1971). See also 42 U.S.C. § 405(g).
This standard requires supporting evidence that is
“‘more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'”
Richardson, 402 U.S. at 401 (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). The court is not permitted to “reweigh the
evidence in the record, nor try any issues de novo, nor
substitute our judgment for the judgment of the
[Commissioner], even if the evidence preponderates against
the [Commissioner's] decision.” Johnson v.
Bowen, 864 F.2d 340, 343 (5th Cir. 1988).
“‘Conflicts in the evidence are for the
[Commissioner] and not the courts to resolve.'”
Brown, 192 F.3d at 496 (quoting Selders v.
Sullivan, 914 F.2d 614, 617 (5th Cir. 1990)). While the
court may alter the Commissioner's decision if based upon
faulty legal analysis, the court should defer to the
Commissioner's legal conclusions if they are within a
permissible meaning of the statutory or regulatory language.
Chevron, U.S.A., Inc. v. National Resources Defense
Council, 467 U.S. 837, 843-44 (1984).
claimant bears the burden of proving the existence of a
medically determinable impairment that has prevented the
claimant from engaging in substantial gainful employment. 42
U.S.C. § 423 (d)(1)(A); 42 U.S.C. § 423 (d)(5). The
Social Security Administration (SSA) utilizes a five-step
sequential process to determine whether a claimant is
disabled. 20 C.F.R. § 404.1520(a), § 404.920(a).
Under this analysis, the ALJ may decide a claimant is
disabled if he finds that (1) the claimant is not employed in
substantial gainful activity; (2) the claimant has a severe,
medically determinable impairment; (3) the claimant's
impairment meets or equals one of the listings in appendix 1
to subpart P of § 404; (4) the impairment prevents the
claimant from performing any past relevant work; and (5) the
impairment prevents the claimant's ability to adjust to
performing any other work. Id.
claimant initially bears the burden of proving disability
under the first four steps, but the burden shifts to the SSA
for the fifth step. Chapparo v. Bowen, 815 F.2d
1008, 1010 (5th Cir. 1987). Therefore, if the
claimant proves that he is unable to perform past relevant
work, the SSA must demonstrate that the claimant can perform
another occupation that exists in significant numbers in the
national economy. The burden then shifts back to the claimant
to establish that he cannot perform this alternative
considering whether a claimant is disabled, the Commissioner
considers the medical evidence available, including medical
opinions. See 20 C.F.R. § 416.927(b).
Ordinarily the opinions, diagnoses, and medical evidence of a
treating physician should be accorded considerable weight in
determining disability. Perez v. Barnhart, 415 F.3d
457, 465-66 (5th Cir. 2005); Newton, 209 at 455. The
treating physician's opinion on the nature and severity
of impairments will be given controlling weight if it is
well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
other substantial evidence. Newton, 209 F.3d at 455.
Before declining to give controlling weight to a treating
physician, the ALJ must consider the factors set forth at 20
C.F.R. § 404.1527(d)(2): (1) the physician's length
of treatment of the claimant; (2) the physician's
frequency of examination; (3) the nature and extent of the
treatment relationship; (4) the support of the
physician's opinion afforded by the medical evidence of
record; (5) the consistency of the opinion with the record as
a whole; and (6) the specialization of the treating
physician. Absent reliable medical evidence from a treating
or examining physician controverting the claimant's
treating specialist, an ALJ may reject the opinion of the
treating physician only if the ALJ performs a detailed
analysis of the treating physician's views under the
criteria set forth in 20 C.F.R. § 404.1527, 419.927.
Newton, 209 F.3d at 453. The ALJ is free to assign
little or no weight to the opinion of any physician for good
cause. Newton, 209 F.3d at 455-56. Good cause may
permit an ALJ to discount the weight of a treating physician
relative to other experts where the physician's evidence
is conclusory; is unsupported by medically acceptable
clinical, laboratory, or diagnostic techniques; or is
otherwise unsupported by the evidence. Id. A
treating physician's opinion may be rejected when the
evidence supports a contrary conclusion. Martinez,
64 F.3d at 176.
existence of an error by the ALJ does not automatically
result in the reversal of the Commissioner's decision.
“Procedural perfection in administrative proceedings is
not required, ” and a court “will not vacate a
judgment unless the substantial rights of a party have been
affected.” Mays v. Bowen, 837 F.2d 1362, 1364
(5th Cir. 1988). When an ALJ commits an error,
remand “is appropriate only if [plaintiff] shows that
he was prejudiced.” Ripley, 67 F.3d at 557.
Mitchell's Opinion Letter
issue is the opinion letter of Dr. Mitchell, dated June 23,
2017. Doc.  at 431-32. Dr. Mitchell is a clinical
psychologist at the VA who treated Plaintiff. In fact, the
record reveals an extensive treatment history with Dr.
Mitchell from 2014 through 2017. The Social Security
regulations consider a psychologist to be an acceptable
medical source. See 20 C.F.R. § 404.1513 (2013)
(defining “acceptable medical source” to include
“licensed or certified psychologists”). The
regulations also require the Commissioner to evaluate every
medical opinion it receives, regardless of its source. 20
C.F.R. § 404.1527(d). “Medical opinions are
statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the
nature and severity of your impairment(s), including your
symptoms, diagnosis and prognosis, what you can still do
despite impairment(s), and your physical or mental
restrictions.” 20 C.F.R. § 404.1527(a)(2).
Although clinical psychologists are not physicians, they may
properly be considered as an examining source for purposes of
determining whether a Newton analysis is necessary.
See Sibley v. Astrue, 2011 WL 7274895, at *10
(E.D.La. Dec.15, 2011) (holding that ALJ did not err in
failing to perform Newton analysis where reliable
evidence from examining psychologist controverted treating
physician's opinion), rec. adopted, 2012 WL 441137, at *1
(E.D.La. Feb. 10, 2012); Naquin v. Astrue, 2009 WL
928502, at *12 (E.D.La. Apr. 3, 2009) (same).
ALJ's decision, she briefly considered Dr. Mitchell's
clinical notes but made no mention whatsoever of the June 23,
2017, letter. Doc.  at 22-23. The ALJ did discuss the
Global Assessment of Functioning scores in Dr. Mitchell's
notes and gave the GAF scores “little weight”;
however, the ALJ did not indicate what weight, if any, she
gave to Dr. Mitchell's opinion. Although Dr.