Davis v. Colvin

Decision Date17 March 2014
Docket NumberCIVIL ACTION NO. 13-5263 SECTION "S" (2)
PartiesTERRY DAVIS v. CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION
CourtU.S. District Court — Eastern District of Louisiana
FINDINGS AND RECOMMENDATION

Plaintiff, Terry Davis, 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 (the "Commissioner"), denying plaintiff's claim for disability insurance benefits ("DIB") under Title II and supplemental security income benefits ("SSI") under Title XVI of the Act. 42 U.S.C. §§ 405(g), 423, 1381a. 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

Davis filed applications for DIB and SSI on May 4, 2011, alleging disability since June 15, 2010, due to depression. (Tr. 126-38, 158). After his applications were denied at the agency level, he requested a hearing before an Administrative Law Judge ("ALJ"), which was held on April 12, 2012. (Tr. 26-45). On May 25, 2012, the ALJ issued a decision denying the applications for benefits. (Tr. 13-22). After the Appeals Council denied review on July 17, 2013, the ALJ's decision became the final decision of the Commissioner for purposes of this court's review. (Tr. 1-3).

Plaintiff filed a timely memorandum of facts and law. Record Doc. No. 13. Defendant filed a timely reply memorandum. Record Doc. No. 14.

II. STATEMENT OF ISSUES ON APPEAL

Plaintiff contends that the ALJ made the following errors:

A. The ALJ erred by finding that plaintiff's spinal disorder is not a severe impairment.
B. The ALJ erred in determining that Davis has the residual functional capacity to perform a full range of work at all exertional levels, with certain nonexertional limitations.
C. The ALJ erred in failing to find that Davis meets Medical-Vocational Rule 201.09.
D. The ALJ erred in failing to give controlling weight to the opinion of plaintiff's treating psychiatrist.
III. ALJ'S FINDINGS RELEVANT TO ISSUES ON APPEAL

The ALJ made the following relevant findings:

1. Plaintiff has not engaged in substantial gainful activity since June 15, 2010, the alleged onset date.
2. He meets the insured status requirements of the Act through September 30, 2014.
3. He has severe impairments consisting of major depressive disorder and history of polysubstance abuse, and a nonsevere impairment consisting of disorder of the spine.
4. Davis does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
5. He has the residual functional capacity to perform a full range of work at all exertional levels, but with the following nonexertional limitations: he has the mental ability to understand, remember and carry out simple job instructions and make judgments in simple work-related situations.
6. Plaintiff's statements concerning the intensity, persistence and limiting effects of his symptoms are not credible to the extent they are inconsistent with the above residual functional capacity.
7. He is capable of performing his past relevant work as a longshoreman.
8. Davis has not been under a disability from June 15, 2010 through the date of this decision.

(Tr. 15-22).

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, No. 12-31099, 2013 WL 5913945, at *2 (5th Cir. May 9, 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. 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 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 aresupported 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, plaintiff must show that he 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 (2011). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity.1 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 he 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

Davis testified that he chose the alleged onset date of June 15, 2010, because he was not able to focus on his work duties and became a liability to his employer, who let him know about it. He said he last worked for two or three days in 2010, because there was not enough work and he was unable to perform the duties. (Tr. 30-31). Upon questioning by the ALJ regarding an earnings record stating that Davis was hired on July 26, 2010, plaintiff agreed that he worked for a few days at that time. (Tr. 44).

Davis said he is being treated at Health Care for the Homeless on Jackson and Lasalle Streets in New Orleans, and he also sees a primary doctor at LSU for his back and legs. (Tr. 31-32). He stated that he sees a psychiatrist, Dr. Calhoun, at Chartres Pontchartrain Behavioral Health Center ("Chartres") once a month and that he has been going there for two to three years. He testified that he is prescribed Zoloft and a number of other medications that he could not recall. He said he does not know what his doctors have diagnosed. (Tr. 32-33). He stated that he cannot work because of his mental status, meaning that he breaks down crying and cannot focus on anything.

Davis recalled that he was diagnosed with depression, but could not say what level of depression. He testified that he is depressed every day. He said he gets nervous and upset, talks to himself and has crying spells for no reason. (Tr. 33). He stated that he never went to the emergency room for his mental condition, but went there "just to beadmitted" because he was hearing and seeing things that were not actually there, such as his deceased sister, mother and father. (Tr. 33-34). He testified that, since at least 2009, he finds himself holding conversations with them. He said he only sees people he knows. He stated that he really misses his parents. He said he tries to do things for himself, but finds himself unable to focus and forgets what he is doing.

Plaintiff testified that he sees deceased people more than once a day, every day. (Tr. 34-35). He said he cannot sleep because he worries about what tomorrow will bring, what he will have to face and things over which he has no control. He stated that he walks around in a daze, then finds himself sitting on his mother's porch step. He said he is doing better with his medication, which helps him feel more relaxed and less jumpy. He testified that he takes his medication three times...

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