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Powell v. Secretary of Health and Human Services

United States District Court, Fifth Circuit

August 28, 2013

JAMES HENRY POWELL, Plaintiff,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.

MEMORANDUM OPINION

S. ALLAN ALEXANDER, Magistrate Judge.

This case involves an application under 42 U.S.C. § 405(g) for judicial review of the decision of the Commissioner of Social Security denying a period of disability and disability benefits under Title II of the Social Security Act. 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 consented to have a United States Magistrate Judge conduct all proceedings in this case, including an order for entry of a final judgment. Therefore, the undersigned has authority to issue this opinion and the accompanying final judgment.

FACTS AND PROCEDURAL HISTORY

Plaintiff James Henry Powell was born April 5, 1954 and was 57 years old at the time of his hearing before an Administrative Law Judge (ALJ). Docket 9, p. 55. He was 54 at the time of his alleged onset date, February 17, 2010. Id. He attended school through the 10th grade and later earned his GED. Id. at 56. His employment experience includes employment as an industrial truck operator, or forklift driver. Id. at 28, 59. Plaintiff filed an application for benefits on March 11, 2010. Docket 9, pp. 153-159. His application was denied initially on May 25, 2010 (Docket 9, p. 102), and upon reconsideration on July 1, 2010 (Docket 9, p. 103). Plaintiff filed a request for hearing before an ALJ on July 16, 2010. Docket 9, pp. 115-116. He contends he is disabled due to right elbow injury, diabetes, and acid reflux. Id. at p. 186. In an opinion dated December 9, 2011, the ALJ found plaintiff not disabled as defined by the Social Security Act and denied plaintiff's request for benefits. Plaintiff unsuccessfully sought review from the Appeals Council and timely filed suit in this court. The case is now ripe for review.

DISCUSSION

In determining disability, the Commissioner, through the ALJ, works through a five-step sequential evaluation process.[1] The burden rests upon the plaintiff throughout the first four steps of this five-step process to prove disability, and if the plaintiff is successful in sustaining his burden at each of the first four levels then the burden shifts to the Commissioner at step five.[2] First, plaintiff must prove he is not currently engaged in substantial gainful activity.[3] Second, the plaintiff must prove his impairment is "severe" in that it "significantly limits [his] physical or mental ability to do basic work activities...."[4] At step three the ALJ must conclude the plaintiff is disabled if he proves that his impairments meet or are medically equivalent to one of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1, §§ 1.00-114.02 (1998).[5] Fourth, the plaintiff bears the burden of proving he is incapable of meeting the physical and mental demands of his past relevant work.[6] If the plaintiff is successful at all four of the preceding steps the burden shifts to the Commissioner to prove, considering plaintiff's residual functional capacity, age, education, and past work experience, that he is capable of performing other work.[7] If the Commissioner proves other work exists which the plaintiff can perform, the plaintiff is given the chance to prove that he cannot, in fact, perform that work.[8] Before considering extrinsic evidence whether other work exists, the Commissioner must consult the Medical-Vocational Guidelines as a framework for decision making. 20 C.F.R. Part 404 Subpart P Appx 2 (Guidelines) § 200.00(a).

After a hearing on plaintiff's application, the Commissioner, acting through the ALJ, concluded that plaintiff was not disabled within the meaning of the Act. The ALJ determined that even though the plaintiff has severe impairments of right elbow disorder, hypertension and diabetes mellitus (Docket 9, p. 22), they neither singly, nor in combination with other conditions, meet or medically equal any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Docket 9, pp. 22-23, Finding Nos. 3 & 4. The ALJ determined that the plaintiff has the residual functional capacity ("RFC") to perform "medium work as defined in 20 CFR 404.1567(c) except no repetitive motion with the right elbow. Id. at Finding No. 5. Relying on the testimony of a vocational expert ("VE"), the ALJ determined that plaintiff was able to perform his past relevant work. Docket 9, pp. 27-29, Finding No. 6.

Although the VE testified that, based on the plaintiff's RFC, he would be able to return to his past work as an industrial truck operator as it was actually and generally performed, the ALJ proceeded to step five of the sequential evaluation process and made alternative findings that "there are other jobs in the national economy that the claimant also can perform (20 CFR 404.1569 and 404.1569(a))." Id., at pp. 28-29. As a consequence, the ALJ found the plaintiff was not disabled under the Social Security Act. Id. at 29. In making this determination the ALJ appropriately cited to applicable medical vocational guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, as required by Social Security Rulings 83-11, 83-12, 83-14 and 83-15. The ALJ noted that because plaintiff retained the RFC to perform the full range of medium work, Medical Vocational Rule 203.15 would require a finding of "not disabled." Because plaintiff's ability to perform the full range of medium work was impeded by additional limitations, however, the ALJ had to assess plaintiff's abilities, then look to testimony of the VE to determine whether there was work he could still perform, and ultimately to conclude that plaintiff was not disabled under the Act. Importantly, none of this analysis would have been necessary had the ALJ simply stopped her analysis at her Step Four finding that the plaintiff was capable of returning to his past work. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir.1995).

On appeal, the court considers whether the Commissioner's final decision is supported by substantial evidence, and whether the Commissioner used the correct legal standard. Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). 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). In the present case, the plaintiff argues that there is not substantial evidence to support the ALJ's finding of "not disabled" based on a review of the plaintiff's RFC, age, education, and work experience in conjunction with the Medical-Vocational Guidelines. Specifically, the plaintiff contends that the ALJ must be reversed because he did not use the correct legal standard when he improperly used Medical Vocational Rule 202.06, which is applicable to persons who's maximum sustained work capability is limited to light work rather than medium. Plaintiff also claims the ALJ erred because there was no medical opinion supporting the ALJ's assessment of plaintiff's RFC. Docket 13, p. 1. The court will address these arguments seriatim.

ANALYSIS

In reviewing the ALJ's decision, this court is limited to determining 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). The court may not re-weigh the evidence or substitute its judgment for that of the ALJ. Hollis v. Bowen, 837 F.2d at 1383 (5th Cir. 1988); Jones v. Heckler, 702 F.2d at 620. Where substantial evidence supports the administrative finding, the court may then only review whether the ALJ applied the proper legal standards and conducted the proceedings in conformity with the applicable statutes and regulations. Hernandez v. Heckler, 704 F.2d 857, 859 (5th Cir.1983).

Substantial Evidence

The regulations require the Commissioner to apply a five-step sequential evaluation process to each claim for disability benefits. See infra. See also Greenspan, 38 F.3d. at 236 (5th Cir. 1994); 20 C.F.R. § 404.1520(a)(4). A finding that a claimant is disabled or not disabled at any point in the five-step process is conclusive and terminates the Commissioner's analysis. Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988).

In this case the ALJ, relying on the testimony of the VE, determined that the plaintiff was able to return to his past work as a forklift operator. Docket 9, p.27. During the hearing, the VE testified that plaintiff had worked as "what is commonly called a forklift operator in industry." Docket 9, p. 97. But that the DOT does not actually address a "forklift operator;" rather the ...


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