United States District Court, N.D. Mississippi, Aberdeen Division
S. ALLAN ALEXANDER, Magistrate Judge.
This case is a request for judicial review under 42 U.S.C. § 405(g) of the decision of the Commissioner of Social Security denying the application of plaintiff Christopher Travers Franklin for supplemental security income (SSI) under Title XVI. Docket 9, p. 145-146, 147-148. Plaintiff filed his application on July 21, 2010, asserting an onset date of July 21, 2010. Id. The Commissioner denied his claim initially and on reconsideration. Docket 9, pp. 90-93, 97-99. Plaintiff challenged the denial of benefits and filed a request for a hearing before an Administrative Law Judge (ALJ). Docket 9, pp. 101-102. The hearing was finally conducted on March 20, 2012; the plaintiff appeared at the hearing and was represented by a non-attorney representative. Docket 9, pp. 25-64. The plaintiff, his mother and a vocational expert (VE) testified at the hearing. Id.
The ALJ issued an unfavorable decision on June 18, 2012. Docket 9, p. 7-19. Plaintiff retained counsel and timely filed a request for review with the Appeals Council on July 13, 2012. Docket 9, p. 5-6. According to the plaintiff, his attorney submitted to the Appeals Council via facsimile a 12-page brief, plus six pages of new supporting materials, for a total of eighteen pages. Docket 13, p.2. The Appeals Council denied plaintiff's request for review [Docket 9, p. 1-4], stating that the Council had "considered the reasons you disagree with the decision and the additional evidence listed on the enclosed Order of Appeals Council." Docket 9, p. 1. The enclosed Order of Appeals Council indicates that it had received only the "Representatives Brief dated August 15, 2012 (12 pages), " and makes no mention of the additional six pages of supporting documents. See Docket 9, p.4. Plaintiff filed this appeal, and it is now ripe for review.
Because both parties have consented to have a magistrate judge conduct all the proceedings in this case under 28 U.S.C. § 636(c), the undersigned has the authority to issue this opinion and the accompanying final judgment.
Plaintiff was born on October 28, 1976 and was thirty-five years old on the date of the ALJ's hearing decision. Docket 9, p. 19. He attended special education classes and obtained a certificate of completion from high school. Docket 9, p. 269. He was previously employed as a material handler, an unskilled job. Docket 9, p. 18. He claimed disability due to seizures, slow learner, headaches and low I.Q. Docket 9, p. 165. The ALJ determined that plaintiff suffers from "severe" impairments of "seizure disorder, borderline intellectual functioning, and a specific learning disability." Docket 9, pp. 12, Finding No. 2. Despite finding he has severe impairments, the ALJ determined that plaintiff does not have an impairment or a combination of impairments that meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1 (20 C.F.R. §§ 404.920(d), 404.925 and 404.926). Docket 9, p.13, Finding No. 3. The ALJ examined the evidence in the record, including opinions from state agency consultants Dr. Glenn James and Dr. Horace Lukens, the plaintiff's treating physician Dr. Reynolds McCain, and testimony from plaintiff, his mother and a VE, and concluded that plaintiff retains the residual functional capacity [RFC] to:
to work at all exertional levels, with non-exertional limitations. He can never climb ladders, ropes, or scaffolds. He must avoid even moderate exposure to workplace hazards such as dangerous machinery and unprotected heights. He can occasionally balance. He can frequently stoop, crouch, kneel, crawl, or climb ramps or stairs. He is capable of performing simple, routine, and repetitive tasks. He can maintain attention and cooperation for two-hour periods. He can make simple work-related decisions. He would be expected to miss two days of work per month.
Docket 9, p. 15, Finding No. 4
Relying on the testimony of a VE, the ALJ held that plaintiff's severe impairments prevented him from returning successfully to his past relevant work. Docket 9, p. 68, Finding No. 5. The ALJ then found that, considering the plaintiff's age, education, work experience and RFC, jobs exist in significant numbers in the national economy that the plaintiff is capable of performing. Docket 9, p. 18, Finding No. 9. Examples of these jobs included an assembler, assembly press operator, and production helper. Docket 9, p. 19. Accordingly, the ALJ determined that the plaintiff was not disabled as defined by the Social Security Act. Docket 9, p. 19. Finding No. 10.
As previously noted the plaintiff requested review by the Appeals Council [Docket 9, p. 5], which denied his request. Docket 9, p. 1. Plaintiff appeals to this court claiming (1) the Appeals Council erred in not considering all additional evidence submitted before its denial, (2) the ALJ erred at Step 2 when she failed to find plaintiff suffered from mild mental retardation, which in turn resulted in an erroneous determination at Step 3 of the evaluation process, (2) the ALJ's RFC assessment was not supported by substantial evidence and does not comport with the requirements of SSR 00-4p, (3) the ALJ did not meet her burden at Step 5, and (4) the Appeals Council and the ALJ erred by not addressing the plaintiff's request to re-open his prior application. Docket 13, p. 1-2.
II. STANDARD OF REVIEW
In determining disability, the Commissioner, through the ALJ, works through a five-step sequential evaluation process. The burden rests upon plaintiff throughout the first four steps of this five-step process to prove disability, and if plaintiff is successful in sustaining his burden at each of the first four levels, then the burden shifts to the Commissioner at step five. First, plaintiff must prove he is not currently engaged in substantial gainful activity. Second, plaintiff must prove his impairment is "severe" in that it "significantly limits [his] physical or mental ability to do basic work activities...." At step three, the ALJ must conclude plaintiff is disabled if he 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 (2010). If plaintiff does not meet this burden, at step four he must prove that he is incapable of meeting the physical and mental demands of his past relevant work. At step five, 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. If the Commissioner proves other work exists which plaintiff can perform, plaintiff is given the chance to prove that he cannot, in fact, perform that work.
The court considers on appeal whether the Commissioner's final decision is supported by substantial evidence and whether the Commissioner used the correct legal standard. Crowley v. Apfel, 197 F.3d 194, 196 (5th Cir. 1999), citing Austin v. Shalala, 994 F.2d 1170 (5th Cir. 1993); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). It is the court's responsibility to scrutinize the entire record to determine whether the ALJ's decision was supported by substantial evidence and whether the Commissioner applied the proper legal standards in reviewing the claim. Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983). The court has limited power of review and may not re-weigh the evidence or substitute its judgment for that of the Commissioner,  even if it finds that the evidence leans against the Commissioner's decision. In the Fifth Circuit substantial evidence is "more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Crowley v. Apfel, 197 F.3d 194, 197 (5th Cir. 1999) (citation omitted). Conflicts in the evidence are for the Commissioner to decide, and if there is substantial evidence to support the decision, it must be affirmed even if there is evidence on the other side. Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The proper inquiry is whether the record, as a whole, provides sufficient ...