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Fullerton v. Commissioner of Social Security

United States District Court, N.D. Mississippi, Oxford Division

November 7, 2014



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 the application of plaintiff Gabriel Shion Fullerton for a period of disability (POD) and disability insurance benefits (DIB) under Sections 216(I) and 223 of the Social Security Act and for supplemental security income (SSI) payments under Section 1614(a)(3) of the Act. Plaintiff protectively filed an application for benefits on June 24, 2010 alleging disability beginning on June 1, 2010. Docket 11, p. 139-49, 173. Plaintiff's claim was denied initially on February 2, 2011, and upon reconsideration on March 15, 2011. Id. at 73-76, 80-93. He filed a request for hearing and was represented by counsel at the hearing held on January 11, 2013. Id. at 33-71. The Administrative Law Judge (ALJ) issued an unfavorable decision on February 14, 2013, and on March 5, 2014, the Appeals Council denied plaintiff's request for a review. Id. at 13-27, 6-8. Plaintiff timely filed the instant appeal from the ALJ's most recent decision, and it is now ripe for review.

Because both parties have consented to have a magistrate judge conduct all the proceedings in this case as provided in 28 U.S.C. § 636(c), the undersigned has the authority to issue this opinion and the accompanying final judgment.


Plaintiff was born on July 14, 1980 and has a high school education and some college course work. Docket # 11, p. 38. He spent four years in the Marine Corps and was 32 years old at the time of the ALJ's decision. Id. Plaintiff's past relevant work was as a truck driver, material handler, garment folder and substitute teacher. Id. at 65. He contends that he became disabled before his application for benefits as a result of depression, sleep apnea, suicidal dreams, nightmares, headaches, numbness on right side, dizziness and chiari malformation. Id. at 139-49.

The ALJ determined that plaintiff suffered from "severe" impairments including "Chiari malformation status post decompression, depression and generalized anxiety, " (Docket 11, p. 18), but that these impairments did not meet or equal a listed impairment in 20 C.F.R. Part 404, Subpart P, App. 1 (20 CFR 404.1520(d), 404.1525, 416.920(d), 416.925 and 416.926). Id. at 19-20. Based upon testimony by the vocational expert [VE] at the hearing and upon consideration of the record as a whole, the ALJ determined that plaintiff retains the Residual Functional Capacity (RFC) to

perform combination of light and sedentary work as defined in 20 C.F.R. 404.1567(b) and 416.967(b). The claimant can lift/carry 20 pounds occasionally and 10 pounds frequently; stand/walk 4 hours total in an 8-hour workday; and sit 6 hour total in an 8-hour workday.... The claimant can understand, remember and carry out simple job instructions. He can sustain concentration and persistence for two-hour periods in an eight-hour workday. He can frequently interact with supervisors and co-workers and frequently respond appropriate to changes in workplace. The claimant requires use of a cane any time he is up and moving about.

Docket 13, p. 21. Upon further analysis under applicable rulings and regulations, the ALJ determined that plaintiff was less than fully credible in that his claimed symptoms, stated limitations and subjective complaints - particularly concerning the intensity, persistence and limiting effects of these symptoms - are not credible. Id. at 24. After evaluating all of the evidence in the record, including testimony of a VE at the hearing, the ALJ held that plaintiff could perform the job of a telephone quotation clerk, surveillance system monitor and laminator I. Id. at 26. As a result, the ALJ concluded that plaintiff is not disabled under the Social Security Act. Id.

Plaintiff claims that the ALJ erred because he did not properly evaluate his credibility, the seriousness of his impairments, the pain from his impairments or the need for a cane, and because the ALJ failed to determine whether plaintiff could perform work on a "regular and ongoing basis."


In determining disability, the Commissioner, through the ALJ, works through a five-step sequential evaluation process.[1] 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.[2] First, plaintiff must prove he is not currently engaged in substantial gainful activity.[3] Second, 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 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, §§ 1.00-114.09 (2010).[5] 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.[6] 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.[7] 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.[8]

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). The court has the responsibility to scrutinize the entire record to determine whether the ALJ's decision was supported by substantial evidence and whether the proper legal standards were applied 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 reweigh the evidence or substitute its judgment for that of the Commissioner, [9] even if it finds that the evidence leans against the Commissioner's decision.[10] The Fifth Circuit has held that 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 court's inquiry is whether the record, as a whole, provides sufficient evidence that would allow a reasonable mind to accept the conclusions of the ALJ. Richardson v. Perales, 402 U.S. 389, 401 (1971). "If supported by substantial evidence, the decision of the [Commissioner] is conclusive and must be affirmed." Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994), citing Richardson v. Perales, 402 U.S. 389, 390, 28 L.Ed.2d 842 (1971).


A. Whether the ALJ properly considered the severity of ...

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