United States District Court, N.D. Mississippi, Oxford Division
S. ALLAN ALEXANDER, Magistrate Judge.
Carl Wayne Reed has filed an appeal under 42 U.S.C. § 405(g) for judicial review of the decision of the Commissioner of Social Security denying his application 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 applications for benefits on June 4, 2009 and September 3, 2009, alleging disability beginning on April 3, 2007. Docket 9, p. 136-40. Plaintiff's claim was denied initially on October 14, 2009 (Docket 9, p. 88-91), and upon reconsideration on March 26, 2010. Id. at 94-96. He filed a request for hearing and was represented by a non-attorney representative at the hearing held on March 21, 2012. Id. at 45-83. The Administrative Law Judge (ALJ) issued an unfavorable decision on July 26, 2012, and the Appeals Council denied plaintiff's request for a review on November 29, 2012. Id. at 26-40, 21-24. Following the Appeals Council's denial, plaintiff retained counsel, who submitted a request to the Appeals Council to reopen and reconsider its earlier denial. Id. at 129-131, 18-19. Plaintiff's counsel submitted a Critical Request for Reconsideration on December 10, 2013 ( Id. at 132-34, 11-17) indicating that plaintiff's gastric adenocarcimona had returned, but the Appeals Council denied plaintiff's request on February 19, 2014. Id. at 6-10. Plaintiff timely filed the instant 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 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 August 8, 1960 and has a high school education. Docket #9, p. 170. On August 8, 2010, plaintiff turned fifty (50) years old and became a person closely approaching advanced age. Plaintiff's past relevant work was as a stocker/materials handler, a heavy equipment operator, construction worker, landscape worker and cleaner. Id. at 76. Plaintiff alleges he became disabled as a result of back pain, stomach pain resulting from cancer, a broken foot and leg pain. Docket 9, p. 153-56.
The ALJ determined that plaintiff suffered from "severe" impairments including "status post decompression of L5-S1 nerve roots, lumbar fusion and stabilization, status post gastric adenocarcinoma with resection, radiation and chemotherapy (no reoccurrence after one year), " (Docket 9, p. 31), but that these impairments did not meet or equal a listed impairment in 20 C.F.R. Part 404, Subpart P, App. 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). Id. at 35. 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 light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) except the claimant can lift/carry 20 pounds occasionally and 10 pounds frequently. The claimant can stand/walk 4 hours total in an 8-hour workday. The claimant can sit for 8 hours in an 8-hour workday. The claimant can occasionally climb, balance, stoop, crouch, kneel and crawl. The claimant can occasionally work around heights and moving machinery.
Docket 9, p. 35. Upon further analysis under applicable rulings and regulations, the ALJ determined that plaintiff was less than fully credible in that his claims concerning the intensity, persistence and limiting effects of his symptoms were not credible. Id. at 37. 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 checker I, cashier II and an assembler. Id. at 39. 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 find him disabled at Step 5 under Medical-Vocational Rule 201.14 ("the Grids") as of his fiftieth birthday and because the ALJ decline to award POD and DIB for the period of time from April 3, 2007 to October 15, 2008 when he suffered from a back injury. 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 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). 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). 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,  even if it finds that the evidence leans against the Commissioner's decision. 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 erred in failing to find plaintiff ...