United States District Court, E.D. Louisiana
FINDINGS AND RECOMMENDATION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
Valinsia Jones, seeks judicial review pursuant to Section
405(g) of the Social Security Act (the “Act”) of
the final decision of the Commissioner of the Social Security
Administration (“Commissioner”), denying
plaintiff's claim for disability insurance benefits
(“DIB”) and supplemental security income benefits
(“SSI”) under Titles II and XVI of the Act. 42
U.S.C. §§ 423, 1382c. This matter was referred to a
United States Magistrate Judge pursuant to 28 U.S.C. §
636(b) and Local Rule 73.2(B).
filed applications for DIB and SSI on May 7 and 15, 2012,
respectively. She alleged disability since April 15, 2010,
due to anxiety, cancer in her right eye, diabetes,
Graves' disease, thyroid cancer and heart problems. (Tr.
185-98). After the Commissioner denied her applications on
July 16, 2012 (Tr. 99-102), plaintiff requested an
administrative hearing before an ALJ, which was held on
September 23, 2013. (Tr. 30-44). On January 16, 2014, the ALJ
issued a decision finding Jones not disabled. (Tr. 79-90).
Appeals Council granted plaintiff's request for review
and remanded the matter to the ALJ for additional findings on
June 26, 2015. (Tr. 93-96). The ALJ held a second hearing on
October 16, 2015. (Tr. 45-61). On December 21, 2015, the ALJ
issued a second decision denying plaintiff's DIB and SSI
applications. (Tr. 8-23). After the Appeals Council denied
review on March 24, 2017, the ALJ's decision became the
Commissioner's final decision for purposes of this
court's review. (Tr. 1-4).
filed a timely memorandum in support of her appeal, to which
she attached a purported “Statement of Uncontested
Material Facts” that summarizes the medical records.
Record Doc. No. 12. Because her combined memorandum and
statement of facts do not exceed the page limit imposed by
Local Rule 7.7 for the single memorandum of facts and law
that she was ordered to file, Record Doc. No. 11, the court
has considered all of her submissions. Defendant filed a
timely reply memorandum of facts and law with a one-page,
attached response to plaintiff's Statement of Uncontested
Material Facts. Together, defendant's submissions do not
exceed the court's page limitation and have been
considered. Record Doc. No. 13.
STATEMENT OF ISSUE ON APPEAL
contends that the Commissioner made the following error:
A. The ALJ erred in rejecting the findings of both
consultative examiners and relying instead upon his own
ALJ'S FINDINGS RELEVANT TO ISSUE ON APPEAL
1. Although Jones engaged in substantial gainful employment
for six months in 2012, there has been a continuous 12-month
period(s) during which she did not engage in substantial
gainful employment. The ALJ's findings relate to that
2. Through her date last insured of September 30, 2015, she
had severe impairments of Graves' disease attended by
ophthalmopathy,  goiter and diabetes mellitus, type II. The
medical record does not support her allegation of a cardiac
condition. Her medically determinable impairment of
depression is nonsevere. Jones has the residual functional
capacity to perform the full range of light work.
3. Her medically determinable impairments could reasonably be
expected to cause some of the alleged symptoms. However, her
statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible.
4. Jones is capable of performing her past relevant work as a
fast food worker.
5. She has not been under a disability from April 15, 2010,
the alleged onset date, through the date of the decision.
Standards of Review
function of this court on judicial review is limited to
determining whether there is substantial evidence in the
record to support the final decision of the Commissioner as
trier of fact and whether the Commissioner applied the
appropriate legal standards in evaluating the evidence.
Richard ex rel. Z.N.F. v. Astrue, 480 F. App'x
773, 776 (5th Cir. 2012) (citing Perez v. Barnhart,
415 F.3d 457, 461 (5th Cir. 2005)); Stringer v.
Astrue, 465 F. App'x 361, 363 (5th Cir. 2012)
(citing Waters v. Barnhart, 276 F.3d 716, 716 (5th
Cir. 2002)). Substantial evidence is more than a scintilla
but less than a preponderance and is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion. Richardson v. Perales, 402 U.S. 389, 401
(1971); Richard ex rel. Z.N.F., 480 F. App'x at
776; Stringer, 465 F. App'x at 363-64;
Perez, 415 F.3d at 461. This court may not reweigh
the evidence in the record, try the issues de novo
or substitute its judgment for the Commissioner's, even
if the evidence weighs against the Commissioner's
decision. Halterman ex rel. Halterman v. Colvin, 544
F. App'x 358, 360 (5th Cir. 2013) (citing Newton v.
Apfel, 209 F.3d 448, 452 (5th Cir. 2000));
Stringer, 465 F. App'x at 364. The Commissioner,
rather than the courts, must resolve conflicts in the
evidence. McCaskill v. Dep't of Health & Human
Servs., 640 F. App'x 331, 335 (5th Cir. 2016)
(citing Perez, 415 F.3d at 461); Luckey v.
Astrue, 458 F. App'x 322, 324 (5th Cir. 2011)
(citing Selders v. Sullivan, 914 F.2d 614, 617 (5th
Cir. 1990)); Newton, 209 F.3d at 452.
is entitled to make any finding that is supported by
substantial evidence, regardless of whether other conclusions
are also permissible. See Arkansas v. Oklahoma, 503
U.S. 91 (1992). Despite this court's limited function, it
must scrutinize the record in its entirety to determine the
reasonableness of the decision reached and whether
substantial evidence supports it. Joubert v. Astrue,
287 F. App'x 380, 382 (5th Cir. 2008) (citing
Perez, 415 F.3d at 461). Any findings of fact by the
Commissioner that are supported by substantial evidence are
conclusive. Ray v. Barnhart, 163 F. App'x 308,
311 (5th Cir. 2006) (citing Perales, 402 U.S. at
390); Perez, 415 F.3d at 461.
considered disabled and eligible for SSI or DIB,
plaintiff must show that she is unable “to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than
twelve months.” 42 U.S.C. §§ 423(d)(1)(A).
The Commissioner has promulgated regulations that provide
procedures for evaluating a claim and determining disability.
20 C.F.R. §§ 404.1501 to 404.1599 & appendices,
§§ 416.901 to 416.998 (2015). The regulations
include a five-step evaluation process for determining
whether an impairment prevents a person from engaging in any
substantial gainful activity. Id. §§
404.1520, 416.920; Alexander v. Astrue, 412 F.
App'x 719, 720 (5th Cir. 2011) (citing Audler v.
Astrue, 501 F.3d 446, 447 (5th Cir. 2007));
Perez, 415 F.3d at 461. The five-step inquiry
terminates if the Commissioner finds at any step that the
claimant is or is not disabled. Id.
claimant has the burden of proof under the first four parts
of the inquiry. If she successfully carries this burden, the
burden shifts to the Commissioner to show that other
substantial gainful employment is available in the national
economy that the claimant is capable of performing. When the
Commissioner shows that the claimant is capable of engaging
in alternative employment, the burden of proof shifts back to
the claimant to rebut this finding. Alexander, 412
F. App'x 720-21; Perez, 415 F.3d at 461.
court weighs four elements of proof when determining whether
there is substantial evidence of disability:
“‘(1) objective medical facts; (2) diagnoses and
opinions of treating and examining physicians; (3) the
claimant's subjective evidence of pain and disability;
and (4) the claimant's age, education, and work
history.'” Chrisner v. Astrue, 249 F.
App'x 354, 356 (5th Cir. 2007) (quoting Wren v.
Sullivan, 925 F.2d 123, 126 (5th Cir. 1991)); accord
Perez, 415 F.3d at 463.
first hearing on September 23, 2013, Jones said she sees a
doctor every two months at the Ambulatory Care Clinic at
Chabert Medical Center for her thyroid, but that her most recent
medical records were not in the record. The ALJ said he would
direct the agency to obtain the missing records. (Tr. 35-37).
testified that she has been disabled since her alleged onset
date in April 2010 because she has been sick “a
lot” or “all the time.” She said she has
heart problems and pain in her legs and feet. She stated that
her last job was as a caregiver for Glory Divine about one to
two years previously. (Tr. 38). She could not confirm the
information on her application stating that she had worked as
a caregiver at a care center from September 2011 until April
2012. She said she stopped working about a year before the
hearing because she was having heart problems, which led to
making an appointment with her thyroid doctor at Chabert, and
she now takes medication for her heart. (Tr. 39).
testified that she goes to the emergency rooms at Chabert and
Thibodaux General Medical Center for treatment, but could not
remember the last time she went to either one. She stated
that Dr. Travis Landry at the Thibodaux General emergency
room first diagnosed her with Graves' disease about two
years before the hearing and that he referred her to the
Ambulatory Care Clinic. (Tr. 39-40). Jones testified that she
takes methimazole and propylthiouracil for
Graves' disease, metformin for diabetes and
propanolol for blood pressure and heart problems,
all prescribed by her doctor at Chabert. (Tr. 40-41). She
said she takes her medications, but does not monitor her
blood sugar. She stated that Graves' disease makes her
eye “big and buggy” and she loses her eyesight.
She testified that she is supposed to have radiation
treatment for her thyroid once her thyroid condition is under
control, which will also help with her eye problems. (Tr.
stated that she does not wear contact lenses. She said her
vision is not good and she could lose her eyesight because of
Graves' disease. She testified that her eye doctor at
Chabert told her she needs to get her blood sugar and her
thyroid under control to help her eye problems. She said she
has an upcoming appointment with the eye doctor. She stated
that Graves' disease makes it difficult to remember
things and to concentrate. The ALJ decided to send Jones to a
consulting internist who could evaluate her thyroid and her
vision. (Tr. 42).
second hearing was conducted on October 16, 2015. Jones
testified that she began having “faintness of the
heartbeats, ” shortness of breath and numbness in her
feet, legs and fingers in April 2010, but has never been
hospitalized for her conditions. (Tr. 49-50). She said she
went to Thibodaux General at that time and was told to
consult a primary care doctor for her thyroid and Graves'
disease. She stated that Dr. Monisha Chadha, a thyroid
specialist, diagnosed Graves' disease in 2010. Plaintiff
testified that she sees Dr. Chadha every six months, but has
her thyroid levels checked every two months. (Tr. 50). She
said she takes methimazole for her thyroid, propanolol to
slow her heartbeat and Vistaril to help her sleep, and
has been taking Prozac “for the anxiety
depression” for the past two months. (Tr. 50-51). She
stated that her psychiatric doctor, Rachel Reaves,
is also at the Ambulatory Care Clinic at Chabert.
testified that she finished the eleventh grade, but cannot
read small print. She said she does not have a driver's
license and was driven to the hearing by her sister. She
lives with her three children aged eleven, ten and six, and
her brother. (Tr. 51).
testified that she last worked a couple of years ago in a
“sitting up job. Like, setting up little person,
” which only lasted a few months because she was always
sick and unable to work, so she quit. Her response to the
ALJ's question whether the job lasted from September 2011
to April 2012 was inaudible. (Tr. 51-52). When the ALJ
inquired again later in the hearing, Jones said she did not
remember how long the job lasted, but thought it was less
than six months.
stated that, on a typical day, she reclines on the sofa all
day because of shortness of breath. She stated that her
daughter helps her get the children ready for school and her
sisters check on her and help her with housework and cooking
during the day. (Tr. 52-53). She said she cannot bathe and
dress herself without assistance.
said she had not undergone ablation or thyroidectomy because
her doctor told her she could not have such treatment until
her thyroid levels are under control. She testified that her
thyroid levels are not under control when she is off her
medication because she cannot afford it. She stated that her
sister helps her with the cost when her sister can, but that
plaintiff is “off my medicine a lot.” (Tr. 53).
testified that she takes only metformin for diabetes. She
stated that her Graves' disease causes pain in her eyes
and headaches. She said she has shortness of breath, shaking
in her hands, numbness in her feet, and pain in her fingers,
toes and the bottom of her feet. (Tr. 54). She estimated that
she can only stand for 30 to 60 minutes at a time because of
pain and numbness in her feet. Jones said she can walk for a
total of one-half block and would have to stop and rest
during that distance because of shortness of breath. (Tr.
54-55). She stated that she walked slowly and that her sister
helped her walk to the hearing from the parking lot. She
estimated she can sit for 30 minutes at one time. (Tr. 55).
She said she cannot lift anything.
stated that her eyes sometimes feel scratchy, like something
is in her eyes, and are always painful. She said she could
see the people sitting across the table from her at the
hearing, but they were blurry. She testified that she has
headaches above her eyes related to her eye problems. (Tr.
said she cannot be around a lot of people because she gets
nervous and her heart beats faster. (Tr. 56-57). She stated
that her sister goes with her whenever she goes anywhere. She
said she does not drive and has never read a computer screen.
had no response to the ALJ's summary of Exhibit 9D
showing that she earned almost $9, 000 in 2012. (Tr. 58). She
thought that her employer's name was Angel's Care.
(Tr. 58-59). She did not think she worked there as long as
six months, but she could not remember. She stated that she
has not worked since then. (Tr. 59).
Vocational Expert Testimony
vocational expert, Beth Drury,  testified at the first
hearing that plaintiff's work activity in the past 15
years was as a caregiver, which is a semiskilled job at the
medium exertional level, and a fast food cashier, an
unskilled job at the light exertional level.(Tr. 43). At
the second hearing, Drury testified that plaintiff's
work activity in the past ten years has been as a caregiver,
which is a light, semiskilled job, and a fast food cashier, a
light, unskilled job. (Tr. 60). The ALJ did not pose any
attorney posed a hypothetical of a person with Jones's
age, education and work experience who can never lift more
than 11 pounds, can lift less than 11 pounds occasionally and
can never carry any weight; can stand for less than an hour
at a time for a total of less than one hour in an eight-hour
day; can walk for less than 30 minutes at a time for a total
of less than one hour in an eight-hour day; can never climb;
can occasionally stoop, kneel or crouch; cannot read small
print or ordinary newspaper or book print; has vision
problems that cause her to bump into doors, other people and
objects; would miss at least two to three days of work each
week; and would need more than the standard three breaks per
day, so she could recline during those breaks. Drury
testified that no jobs would be available for such a person.
reviewed the medical records in evidence and the ALJ's
summary of the medical evidence. (Tr. 15, 19-22). I find the
ALJ's summary of the medical evidence substantially
correct and incorporate it herein by reference, with the
modifications, corrections and highlights noted below.
ALJ's determination of plaintiff's residual
functional capacity is not supported by ...