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Davis v. Colvin

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

March 12, 2015

ALVIN DAVIS, JR., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


DAVID A. SANDERS, Magistrate Judge.

This matter is before the court pursuant to 42 U.S.C. § 405(g) to review the decision of the Commissioner of Social Security denying the application of Alvin Davis, Jr. for Disability Insurance Benefits and Supplemental Security Income under the Social Security Act. The parties in this case have consented to entry of final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the Fifth Circuit. After considering the issues raised and after conducting an oral argument on the matter, the court finds as follows


Plaintiff was born on February 19, 1966 and was forty-seven years old at the time of the ALJ's decision. He is a high school graduate, and his relevant work experience was primarily as a truck driver, although he also served as a janitorial worker. Plaintiff contends that he became disabled based on a combination of severe physical impairments, including morbid obesity, Type II diabetes mellitus, hypertension, obstructive sleep apnea with daytime sleepiness, gout, chronic lower back pain, and shortness of breath caused by bronchitis and sinusitis. The plaintiff's alleged prescriptions as of the date of the ALJ hearing included Glipizide (diabetes), Metformin (diabetes), Novolog 70/30 (diabetes), Zolpidem (sleep apnea), ED-A-Hist and Azithromycin (respiratory), Lortab (back pain), Naproxen (back pain), Lisinopril (hypertension), Hydrochlorothiazide (fluid), Prilosec (acid reflux), and Simvastatin (cholesterol). The plaintiff also had been prescribed Nuvigil in the past, which is used to treat excessive sleepiness caused by sleep apnea or narcolepsy.

In his decision, the ALJ found the plaintiff suffered from the following severe impairments: diabetes mellitus, hypertension, sleep apnea, and obesity. The ALJ found the plaintiff's back pain secondary to degenerative arthritis and gout "were not severe within the meaning of the Social Security Act." The ALJ based these negative findings on the lack of objective medical evidence for each condition. Similarly, plaintiff's allegation of narcolepsy was discounted because "absolutely no objective evidence within the record to substantiate a diagnosis of narcolepsy" existed. Plaintiff's allegations of bronchitis and sinusitis were likewise discounted. Again, the ALJ found they were not supported by the evidence in the record, and the plaintiff's subjective complaints regarding them lacked credibility.

After reviewing plaintiff's severe impairments, the ALJ found that none met the listed impairments in 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). The ALJ then determined that the plaintiff had the residual functional capacity (RFC) to perform light works as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b).

In arriving at this RFC, the ALJ discounted the limitations of plaintiff's hypertension and diabetes mellitus because treatment records showed they could be controlled with medication. The plaintiff's back pain and gout were likewise discounted because, based on the medical records before him at the hearing, they only accounted for three of his many visits to the hospital. Finally, although sleep apnea was deemed a severe impairment, no limitations were discussed or assigned for plaintiff's sleep apnea during the ALJ's RFC determination.

The ALJ then asked the vocational expert whether jobs existed in the local or national economy that a hypothetical individual with various limitations similar to some or all of those alleged by the plaintiff could perform. The vocational expert answered in the affirmative and provided the ALJ with three jobs: furniture rental clerk, office helper, and a customer service representative. The ALJ ultimately found the plaintiff was not disabled within the purview of the Social Security Act.

On April 18, 2013, the plaintiff filed a request for review and on January 6, 2014, he submitted a brief in support of his request for review. Along with his request, the plaintiff submitted additional medical records that had not been presented to the ALJ. Nevertheless, on March 18, 2014, the Appeals Council denied the plaintiff's request, and the plaintiff filed the present action.


To determine 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's, [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). 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, 289 L.Ed.2d 842 (1971)).


In the present action, the plaintiff makes essentially two arguments. First, the plaintiff argues the Appeals Council erred when it failed to consider the evidence submitted for the first time to the Council and not considered by the ALJ. Next, the plaintiff argues the ALJ's assessment of his RFC was not supported by substantial evidence. Specifically as to this second issue, the plaintiff points to the ALJ's decision to discount the opinion of his treating physician and his failure to account for the plaintiff's complaints of sleep apnea. Finally, the plaintiff contends the RFC is flawed because the ALJ failed to include a sit/stand option. The court will address each of these issues in turn.

A. Additional Medical Evidence

Plaintiff first argues that the Appeals Council failed to follow the law when it refused to consider portions of the additional evidence submitted to it in support of his request for review. In its Notice of ...

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