Teresa Britton v. Andrew Saul, Commissioner ( 2020 )


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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    opinion should not be published and is not precedent except under the limited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
    2
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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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