Filed: Sep. 17, 2020
Latest Update: Sep. 17, 2020
Summary: Case: 20-30025 Document: 00515568158 Page: 1 Date Filed: 09/17/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 20-30025 Summary Calendar FILED September 17, 2020 Lyle W. Cayce Teresa P. Britton, Clerk Plaintiff—Appellant, versus Andrew M. Saul, Commissioner of Social Security, Defendant—Appellee. Appeal from the United States District Court for the Western District of Louisiana USDC No. 3:18-CV-1523 Before Davis, Stewart, and Dennis, Cir
Summary: Case: 20-30025 Document: 00515568158 Page: 1 Date Filed: 09/17/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 20-30025 Summary Calendar FILED September 17, 2020 Lyle W. Cayce Teresa P. Britton, Clerk Plaintiff—Appellant, versus Andrew M. Saul, Commissioner of Social Security, Defendant—Appellee. Appeal from the United States District Court for the Western District of Louisiana USDC No. 3:18-CV-1523 Before Davis, Stewart, and Dennis, Circ..
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Case: 20-30025 Document: 00515568158 Page: 1 Date Filed: 09/17/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 20-30025
Summary Calendar
FILED
September 17, 2020
Lyle W. Cayce
Teresa P. Britton, Clerk
Plaintiff—Appellant,
versus
Andrew M. Saul, Commissioner of Social Security,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:18-CV-1523
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant Teresa P. Britton is seeking judicial review of
Defendant-Appellee Commissioner of the Social Security Administration’s
(SSA) decision denying her application for disability insurance benefits. The
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-30025 Document: 00515568158 Page: 2 Date Filed: 09/17/2020
No. 20-30025
district court adopted the magistrate court’s report and recommendation
that affirmed the Commissioner’s decision.
Seeing no reversible error, we affirm the district court’s judgment.
I.
At the time of her claimed disability onset, January 2, 2016, Britton
was 58. Britton completed the 12th grade and worked for 20 years at J.C.
Penney’s as a retail sales clerk. In Britton’s request for Title II disability
insurance benefits (DIB), she cited arthritis, diabetes, and headaches, in
addition to head, neck, back, and knee injuries. The Commissioner denied
her application. She then requested and received an administrative hearing.
The hearing was held before an Administrative Law Judge (“ALJ”)
on August 23, 2017. Britton appeared at the hearing and testified with the
assistance of an attorney. A vocational expert (“VE”) was also present and
testified as an expert witness. Britton testified that she is unable to work due
to her knee giving out and back pain. She also stated that at times she uses a
cane, prescribed by “Dr. Brown” (hereinafter, “APRN Brown”). 1 The VE
testified that someone with Britton’s background could perform Britton’s
past relevant work as a retail sales clerk.
In December 2017, upon reviewing her claim under step four of the
sequential five-step analysis,2 the ALJ found that Britton suffered from
1
In referencing “Dr. Brown,” the record reflects that Britton was referring to
Michael Brown, a nurse practitioner.
2
See, e.g., Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005) (“The ALJ uses a
five-step sequential analysis to evaluate claims of disability: (1) whether the claimant is
currently engaged in substantial gainful activity (whether the claimant is working); (2)
whether the claimant has a severe impairment; (3) whether the claimant’s impairment
meets or equals the severity of an impairment listed in 20 C.F.R., Part 404, Subpart [P],
Appendix 1; (4) whether the impairment prevents the claimant from doing past relevant
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severe impairments of lumbar and cervical disc disease, osteoarthritis, and
diabetes. Even with the impairments at issue, the ALJ determined that
Britton still retained enough residual functional capacity (“RFC”) to
perform light work as a retail sales clerk, “except she can occasionally kneel,
stoop, crouch, and crawl, but never climb ramps, stairs, ladders, ropes or
scaffolds.” Relying upon her RFC assessment and the VE’s testimony, and
considering Britton’s age, 12th grade education, and work experience, the
ALJ ruled that (as part of the stage four analysis) Britton was able to return
to work and perform her past relevant duties as a retail sales clerk. This ruling
effectively affirmed the Commissioner’s denial of Britton’s DIB benefits.
Britton sought review before the district court in the Western District
of Louisiana. The matter was then referred to the magistrate court who
issued a thorough report and recommendation concluding that the ALJ
decision was supported by substantial evidence and free of legal error. The
district court reviewed and adopted the magistrate judge’s report and
recommendation and entered a judgment affirming the Commissioner’s
decision.
Having exhausted all administrative and lower court remedies
available to her, Britton filed this appeal before us. She raises four issues with
regards to the administrative determination: (1) the ALJ’s RFC finding was
not supported by substantial evidence; (2) the ALJ failed to credit the
advanced practice registered nurse’s opinion; (3) the ALJ failed to properly
evaluate Britton’s subjective complaints; and (4) ALJ’s finding that Britton
can return to her past relevant work as a sales clerk is not supported by
substantial evidence.
work (whether the claimant can return to his old job); and (5) whether the impairment
prevents the claimant from doing any other work.”).
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II.
Judicial review of the Commissioner’s denial of disability insurance
benefits “is limited to two inquiries: (1) whether the decision is supported by
substantial evidence on the record as a whole, and (2) whether the
Commissioner applied the proper legal standard.” Copeland v. Colvin, 771
F.3d 920, 923 (5th Cir. 2014) (quoting Perez v. Barnhart,
415 F.3d 457, 461
(5th Cir. 2005)). Substantial evidence is “more than a mere scintilla and less
than a preponderance.”
Perez, 415 F.3d at 461 (internal quotation marks
omitted). It refers to “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Id. (internal quotation marks
omitted).
It is the role of the Commissioner, and not the courts, to resolve
conflicts in the evidence. Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999).
As a result, this court “cannot reweigh the evidence, but may only scrutinize
the record to determine whether it contains substantial evidence to support
the Commissioner’s decision.” Leggett v. Chater,
67 F.3d 558, 564 (5th Cir.
1995). If we conclude that the ALJ applied the correct legal standard and
substantial evidence supports the ALJ’s decision, we are to affirm the
Commissioner’s decision. See Boyd v. Apfel,
239 F.3d 698, 704 (5th Cir.
2001).
III.
In order to qualify for DIB, a claimant must suffer from a disability
which is defined under 42 U.S.C. § 423(d)(1)(A). The Commissioner uses a
sequential, five-step approach to determine whether a claimant is disabled.
See Perez, 415 F.3d at 461. Notably, “the claimant bears the burden of proof
with respect to the first four steps of the analysis . . . .” Waters v. Barnhart,
276 F.3d 716, 718 (5th Cir. 2002). We now examine each of Britton’s
arguments below.
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Issue One: Britton contends that the ALJ’s RFC finding is not
supported by substantial evidence. While the ALJ concluded that she could
essentially perform light work, Britton asserts that this assessment failed to
address her standing and walking limitations. Particularly, her use of a cane
and forthcoming knee surgery evinces her inability to perform light work.
She further claims that the ALJ’s ruling correctly reflects the existence of a
knee impairment that impacts her ability to stand and walk, but then the ALJ
erroneously draws a conclusion (without the appropriate reasoning) that
Britton has the ability to perform sustained work activities. Thus, according
to Britton, the ALJ committed reversible error in reaching this conclusion.
In assessing Britton’s RFC, the ALJ found that she was capable of
performing light work with certain limitations. Light work, as defined by the
regulations, “involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. §
404.1567(b). A job constitutes light work when “it requires a good deal of
walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls.” Id.
We find no error in the RFC characterization because the ALJ relied
on the substantial evidence to support this conclusion. Indeed, the ALJ
considered all of the relevant evidence including but not limited to: (1) Dr.
Michael E. Ehrlich’s 2015 and 2016 examinations; (2) opinions and
statements of APRN Brown; (3) the rehabilitation report from the physical
therapist, Jesse Weid; (4) Dr. William Varnado’s April 2016 consultative
examination report stating that Britton could get up and out of the chair
without difficulty, that her cane is not medically required, and that she could
lift objects continuously; (5) the state agency non-examining physician’s, Dr.
Craig Billinghurst, opinion that Britton had the ability to stand and/or walk
for a total of six hours in an eight-hour workday, with no postural limitations;
(6) the VE testimony that Britton’s RFC could perform her past relevant
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work as a retail sales clerk; and (7) 2016 and 2017 treatment records from
orthopedic specialist Richard L. Ballard stating that Britton’s right knee was
instable and was improving but would need to undertake operative knee
surgery in the future.
Considering the record as a whole, any walking or standing limitations
were encompassed in the opinions and impressions above, and in assessing
this medical record, it was the ALJ’s responsibility to “choose whichever
physician’s diagnosis is most supported by the record.” Muse v. Sullivan,
925 F.2d 785, 790 (5th Cir. 1991). We see no issue with the ALJ giving greater
weight to the evaluations of Dr. Varnado and Dr. Billinghurst over APRN
Brown’s assessment (for example) because “the ALJ was justified in
accepting the testimony and findings of some over others.” Pineda v. Astrue,
289 F. App’x 710, 713 (5th Cir. 2008) (per curiam) (unpublished). The ALJ
was also warranted in crediting Dr. Ehrlich’s examination to find that despite
her intermittent use of a cane, Britton’s use of this device was not an essential
element of her functioning. These opinions as well as others in this record
are credible and could reasonably support the ALJ’s RFC determination that
Britton could perform her past relevant work. As such, in reviewing the
medical evidence and testimony, substantial evidence supports the ALJ’s
RFC conclusion that Britton has the ability to perform light exertion
consistent with the definition of light work.
Thus, we find no reversible err with the ALJ’s RFC finding.
Issue Two: Britton’s next contention is in reference to the ALJ
assigning little weight to opinions and statements of APRN Brown.
According to Britton, ALJ’s basis for not crediting APRN Brown’s
impressions is not supported by substantial evidence. Britton maintains that
the ALJ failed to give sufficient weight to APRN Brown’s assessment of
Britton’s functional limitations because APRN Brown is a nurse practitioner.
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Under 20 C.F.R. § 404.1502(a)(7), a nurse practitioner, like APRN
Brown, is an “acceptable medical source” only with respect to claims filed
on or after March 27, 2017.
The Commissioner is to give substantial weight to the “opinions,
diagnoses, and medical evidence of a treating physician who is familiar with
the claimant’s injuries, treatments, and responses.” Myers v. Apfel, 238 F.3d
617, 621 (5th Cir. 2001). Nonetheless, the ultimate responsibility for
determining a claimant’s disability status lies with the ALJ. See Moore v.
Sullivan,
919 F.2d 901, 905 (5th Cir. 1990).
Here, because Britton’s DIB claim was filed before March 27, 2017,
APRN Brown’s assessments and opinions are not considered accepted
medical sources under 20 C.F.R. § 404.1502(a)(7). In turn, it is well within
the ALJ’s discretion to not afford APRN Brown’s opinions and statements
the same level of deference as acceptable medical sources. See 20 C.F.R. §
404.1527(f)(2) (explaining the “articulation” requirement for the weight
given to opinions from sources who are not “acceptable” medical sources);
cf. Greigo v. Sullivan, 940 F.2d 942, 945 (5th Cir. 1991) (noting that under
applicable regulations, chiropractors are given less weight compared to other
medical sources such as medical doctors).
Consequently, we see no error in the ALJ’s credibility and weight
determination of APRN Brown.
Issue Three: Britton argues that the ALJ discounted her subjective
complaints solely based on her activities of daily living and that this was
insufficient.
Under 20 C.F.R. § 404.15429, in evaluating the claimant’s symptoms
and pain, the ALJ must consider “all of the available evidence, including [the
claimant’s] medical history, the medical signs and laboratory findings, and
statements about how [the] symptoms affect” the claimant. The ALJ “is
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entitled to determine the credibility of medical experts as well as lay
witnesses and weigh their opinions accordingly.” Scott v. Heckler, 770 F.2d
482, 485 (5th Cir. 1985).
Here, in making her credibility determination, the ALJ carefully
weighed Britton’s medical evidence and her hearing testimony regarding her
daily activities. Specifically, the ALJ found that the April 2016 findings of
the consultative examiner, Dr. Varnado, were inconsistent with Britton’s
February 2016 Function Report and 2017 hearing testimony. In Dr.
Varnado’s April 2016 findings, Britton stated that she was unable to do
dishes, cook, or go shopping for groceries. Yet, in the February 2016
Function Report, she stated that she danced and exercised every day, had the
ability to grocery shop, prepare meals, and do household chores, such as
laundry and cleaning. At the 2017 hearing, Britton testified that she couldn’t
work because of her knee giving out but still maintained “the ability to
perform daily activities, including washing dishes, cook, grocery shop, and
do her laundry” and “could perform personal care needs and drive a car.”
As such, the ALJ clearly considered and accounted for Britton’s statements
about her pain and its limiting effects but did not find the medical and other
evidence to be consistent with her statements about the intensity, duration
and restrictive effect of the pain professed to Dr. Varnado. We must accord
“great deference” to the ALJ’s evaluation of the record and assessment of
Britton’s credibility. See Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000).
Accordingly, we see no reversible error as it relates to the ALJ’s
application of these legal standards and discerning an inconsistency based on
substantial evidence.
Issue Four: Lastly, Britton challenges the ALJ’s finding at step four
that Britton was not disabled because she was able to perform her past
relevant work as a retail sales clerk.
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A claimant may retain the capacity to perform her past relevant work
either “as he or she actually performed it” or “as ordinarily required by
employers throughout the national economy.” Social Security Ruling 82-62,
Titles II and XVI: A Disability Claimant’s Capacity to Do Past Relevant
Work, in General, 1982 WL 31386, at *1−*2 (Jan. 1, 1982)
Here, we find that the ALJ’s determinations are likewise amply
supported by substantial evidence. The evidence discussed above—
including the VE’s and Britton’s hearing testimony and the medical
evidence—are sufficient to support the ALJ’s finding that Britton is able to
perform relevant work as a retail store clerk. Therefore, the ALJ’s decision
denying Britton disability benefits was supported by substantial evidence in
the record as a whole.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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