Sims v. Astrue

• Decision Date: 27 July 2010
• Docket Number: NO. 1:08CV272-SAA,1:08CV272-SAA
• Parties: VICKIE L. SIMS, PLAINTIFF v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT
• Court: U.S. Bankruptcy Court — Northern District of Mississippi

VICKIE L. SIMS, PLAINTIFF

v.MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT

NO. 1:08CV272-SAA

United States District Court

For The Northern District Of Mississippi

Eastern Division

July 27, 2010

MEMORANDUM OPINION

S. Allan Alexander, J

Plaintiff Vickie L. Sims filed this appeal under 42 U.S.C. § 405(g) seeking judicial review of the Commissioner of Social Security's decision denying supplemental security income (SSI) benefits under Title XVI. The district court's jurisdiction over plaintiff's claim rests upon 28 U.S.C. § 1331. In accordance with the provisions of 28 U.S.C. § 636(c), both parties have consented to have a magistrate judge conduct all the proceedings in this case, the undersigned therefore has the authority to issue this opinion and the accompanying final judgment.

BRIEF FACTUAL SUMMARY

Plaintiff was born in 1968 and was 39 years old at the time of the hearing before the Administrative Law Judge. Tr. 24. She completed the 12th grade in school at the age of 20 having taken special education classes. Tr. 115, 159-160. Her application for SSI, filed on November 22, 2005, was denied both initially and on reconsideration. Tr. 11. A request for hearing was timely filed, and the hearing was held on October 23, 2007. See Tr. 21-42. Plaintiffcontends she is disabled due to Raynaud's disease, depression, thyroid problems, numbness, headaches, memory, dizziness, back pains, weakness, high blood pressure, frequent urination, blurred vision and leg cramps. Tr.108. In an opinion dated December 7, 2007, the ALJ found that plaintiff was not disabled as defined by the Social Security Act. After she was denied benefits, plaintiff was evaluated by a licenced psychologist, Glenn T. Ellis, at the request of her attorney. Tr. 161-163. Dr. Ellis administered the Wechsler Adult Intelligence Scale-Third Edition ("WAIS-III") and determined plaintiff has a verbal IQ of 66, a performance IQ of 59 and a full scale IQ score of 60. Tr. 161. This information was submitted to the Appeals Council on October 29, 2008 by counsel for the plaintiff in a request for reopening and reconsideration of the Council's August 28, 2008 denial. The Council denied plaintiff's request for further review on October 31, 2008. Tr. 1-2. The plaintiff timely appealed, and this case is now ripe for review.

STANDARD OF REVIEW

This court's review of the Commissioner's decision is limited to an inquiry into whether there is substantial evidence to support the findings of the Commissioner, Richardson v. Perales, 402 U.S. 389, 401 (1971), and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence has been defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)). The Fifth Circuit has further stated that substantial evidence:

must do more than create a suspicion of the existence of the fact to be established, but 'no substantial evidence' will be found only where there is a 'conspicuous absence of credible choices' or 'no contrary medical evidence.'

Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)). Further, in Social Security disability review cases, where § 405(g) governs the standard of review, Frith v. Celebrezze, 333 F.2d 557, 560 (5th Cir.1964), the Fifth Circuit has held that appellate review is limited to two issues: (1) whether the Commissioner applied the proper legal standards; and (2) whether the Commissioner's decision is supported by substantial evidence on the record as a whole. Morris v. Shalala, 207 F.3d 744, 745 (5th Cir. 2001) citing Paul v. Shalala, 29 F.3d 208, 210 (5th Cir.1994); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir.1992). This court may not overturn the Secretary's decision if it is supported by substantial evidence-"more than a mere scintilla"-and correctly applies the law. Morris at 745; Anthony, 954 F.2d at 292.

Conflicts in the evidence are for the Commissioner to decide, and if substantial evidence is found to support the decision, the decision must be affirmed even if there is evidence on the other side. Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The court may not re-weigh the evidence, try the case de novo, or substitute its own judgment for that of the Commissioner. Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988), even if it finds that the evidence preponderates against the Commissioner's decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994); Harrell, 862 F.2d at 475. If the Commissioner's decision is supported by the evidence, then it is conclusive and must be upheld. Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994).

In determining whether an individual is entitled to SSI benefits the Commissioner, through the ALJ, must follow the five-step sequential evaluation process set out in 20 C.F.R. §416.920(a)(4). The burden rests upon the plaintiff throughout the first four steps of this fivestep process to prove disability, and if the plaintiff is successful in sustaining her burden at each of the first four levels then the burden shifts to the Commissioner at step five.¹ First, plaintiff must prove she is not currently engaged in substantial gainful activity.² Second, the plaintiff must prove her impairment is "severe" in that it "significantly limits her physical or mental ability to do basic work activities...."³ At step three the ALJ must conclude the plaintiff is disabled if she proves that her impairments meet or are medically equivalent to one of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1, §§ 1.00-114.09 (2003).⁴ If plaintiff does not meet this burden, at step four she must prove that she is incapable of meeting the physical and mental demands of her past relevant work.⁵ At step five the burden shifts to the Commissioner to prove, considering plaintiff's residual functional capacity, age, education and past work experience, that she is capable of performing other work.⁶ If the Commissioner proves other work exists which the plaintiff can perform, the plaintiff is given the chance to prove that she cannot, in fact, perform that work.⁷

In the instant case the ALJ found that the plaintiff suffered from depression, soft tissue rheumatism, headaches, hypertension and thyroid disease but that she was not disabled as defined by Title XVI of the Act. Tr. 13-17. More specifically, the ALJ determined that plaintiff was not entirely credible. Tr. 17-18. He noted that evidence in the record reveals numerous inconsistencies in the plaintiff's testimony, in her medical history as relayed to her physicians, in her stated abilities to perform activities of daily living and vocational abilities and that plaintiff was chronically non-compliant with medication prescribed to control or remedy her medical conditions. Tr. 18. After considering the evidence in the record, the ALJ found that plaintiff had the residual functional capacity ("RFC")

to perform sedentary work except that she is limited to no more than occasional stooping, climbing and balancing; can never climb ladders, crouch, kneel or crawl; and must avoid cold temperatures, moving/dangerous machinery; and may be absent from work up to one or two days per month due to headaches." "Further, [plaintiff] is limited to the performance of simple tasks that do not require her to concentrate for more than two hours at a time and that require no more than occasional interaction with supervisors that give only minimal supervision" yet "[s]he is able to interact with co-workers and the general public and can get through a normal work week.

Tr. 17. Relying on the evidence in the record, including testimony of a vocational expert ("VE"), and considering plaintiff's age, education, her lack of transferrable job skills or past relevant work, the ALJ determined that there is work in the national economy which the plaintiff can perform, Tr. 19, and therefore is not disabled as defined by the Social Security Act. Tr. 20.

If the record in this action were the same as that considered by the ALJ, the court would unequivocally affirm. However, plaintiff's submission of subsequent IQ test results, deemed valid by the clinical psychologist who tested her, and his accompanying Medical Assessment bring into question whether plaintiff should be found to meet Listing 12.05.

ISSUES ON APPEAL

Plaintiff asserts that the Appeals Council erred in failing to properly consider the new and material evidence of Dr. Ellis's report, including her IQ test scores and her high school transcript, and the ALJ erred because he (a) did not afford proper weight to the opinions of the plaintiff's treating and consulting physicians his RFC assessment and (b) did not find plaintiff disabled at step five of the sequential evaluation process. Docket 9, p.1.

DISCUSSION

Substantial evidence is evidence that a reasonable mind would accept as adequate to support the decision. Austin v. Shalala, 994 F.2d 1170, 1174 (5th Cir.1993), citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). The plaintiff argues that because the decisions of both the ALJ and the Appeals Counsel were unsupported by substantial evidence, this case must be remanded for further consideration. In reviewing the decision of the Commissioner, the court is limited to determining, without re-weighing the evidence, whether there was substantial evidence in the record as a whole to support the decision that the claimant is not under a "disability" as defined by the Social Security Act. 42 U.S.C. § 405(g); Jones v. Heckler, 702 F.2d 616, 620 (5th Cir.1983). See Green v. Schweiker, 694 F.2d 108, 110 (5th Cir.1982), cert. denied, 460 U.S. 1091, 103 S.Ct. 1790, 76 L.Ed.2d 357 (1983). Where...