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Jones v. Berryhill

United States District Court, E.D. Louisiana

February 23, 2018

VALINSIA JONES
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY

         SECTION “B” (2)

          FINDINGS AND RECOMMENDATION

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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).

         I. PROCEDURAL HISTORY

         Jones 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).

         The 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).[1] 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).

         Jones 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.

         II. STATEMENT OF ISSUE ON APPEAL

         Plaintiff 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 medical opinion.

         III. 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 period(s).
2. Through her date last insured of September 30, 2015, she had severe impairments of Graves' disease[2] attended by ophthalmopathy, [3] goiter[4] 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.

(Tr. 13-22).

         IV. ANALYSIS

         A. Standards of Review

         The 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.

         The ALJ 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.

         To be considered disabled and eligible for SSI or DIB, [5] 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.[6] 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.

         The 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.

         The 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.

         B. Factual Background

         At the first hearing on September 23, 2013, Jones said she sees a doctor every two months at the Ambulatory Care Clinic at Chabert Medical Center[7] 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).

         Jones 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).

         Plaintiff testified that she goes to the emergency rooms at Chabert and Thibodaux General Medical Center[8] 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[9] and propylthiouracil[10] for Graves' disease, metformin[11] for diabetes and propanolol[12] 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. 41).

         Plaintiff 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).

         A 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[13] to help her sleep, and has been taking Prozac[14] “for the anxiety depression” for the past two months. (Tr. 50-51). She stated that her psychiatric doctor, Rachel Reaves, [15] is also at the Ambulatory Care Clinic at Chabert.

         Plaintiff 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).

         Jones 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.

         Plaintiff 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.

         Jones said she had not undergone ablation[16] 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).

         Plaintiff 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.

         Jones 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. 56).

         Plaintiff 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. (Tr. 57).

         Jones 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).

         C. Vocational Expert Testimony

         A vocational expert, Beth Drury, [17] 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.[18](Tr. 43). At the second hearing, Drury[19] 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 hypotheticals.

         Plaintiff's 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. (Tr. 60-61).

         D. Medical Evidence

         I have 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.

         E. Plaintiff's Appeal

         1. The ALJ's determination of plaintiff's residual functional capacity is not supported by ...


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