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Holman v. Colvin

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

January 5, 2017

DAVID EARL HOLMAN PLAINTIFF
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY DEFENDANT

          MEMORANDUM OPINION

          ROY PERCY, UNITED STATES MAGISTRATE JUDGE

         Plaintiff David Earl Holman, under 42 U.S.C. § 405(g), seeks judicial review of the decision of the Commissioner of Social Security denying his applications 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 September 12, 2013 alleging disability beginning on July 31, 2012. His claim was denied initially on February 5, 2014, and upon reconsideration on March 11, 2014. He filed a request for hearing and was represented by counsel at the hearing held on October 16, 2014. The Administrative Law Judge (ALJ) issued an unfavorable decision on November 26, 2014, and on February 4, 2016 the Appeals Council denied plaintiff's request for a review. 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. Having considered the record, the briefs and the oral arguments of counsel on December 7, 2016, the court finds this case should be remanded to the Social Security Administration.

         I. FACTS

         Plaintiff was born on April 25, 1969 and was 45 years old at the time of the hearing. He has a high school education and has past relevant work as a laborer. Plaintiff contends that he became disabled before his application for benefits due to “PTSD, depression, anxiety, knee and hand pain, and muscle spasms.” Docket 8 at 187. While this application for benefits was pending, plaintiff obtained a VA non-service related pension based upon a diagnosis of major depressive disorder on May 17, 2014. Docket 8 at 588-90.

         The ALJ determined plaintiff suffered from “severe” impairments including depression, anxiety, muscle spasms, joint pain, ACL tear, osteoarthritis, and degenerative disc disease but found 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, 404.1526, 416.920(d) 416.925 and 416.926). Based upon testimony by the vocational expert [VE] at the hearing and considering the record as a whole, the ALJ determined that plaintiff retains the Residual Functional Capacity (RFC) to

perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except the individual can perform detailed tasks; can concentrate for two hour periods; can have occasional contact with the general public and with coworkers; must avoid extreme cold, works best independently; cannot work in crowds of 10 people or more in the immediate workspace; and pushing and pulling is limited to 10 pounds with the lower left extremity.

Docket 8 at 14. Upon further analysis under applicable rulings and regulations, the ALJ found plaintiff to be less than fully credible in that the intensity, persistence and limiting effects he claimed due to his symptoms were “not entirely credible.” After evaluating all of the evidence in the record, including testimony of a VE, the opinions of two state agency medical consultants and plaintiff's records from the VA, the ALJ held that plaintiff could perform jobs that exist in the national economy such as an order clerk and information clerk. Docket 8 at 18. As a result, the ALJ concluded that plaintiff is not disabled under the Social Security Act. Id.

         Plaintiff contends first that the ALJ erred because he failed to properly weigh the opinions of non-examining physicians, on one hand, and the plaintiff's VA disability rating decision based upon an examination, on the other hand. At oral argument before this court plaintiff argued the ALJ should have required that the records upon which the VA disability rating decision was based, specifically the March 17, 2014 VA Rating Decision and the January 13, 2014 VA Examination, be included in the record for review. This court agrees and concludes the ALJ's decision was not based upon substantial evidence because he did not have relevant and material VA records to review. Because this matter is remanded for review and consideration of additional evidence, the court will not address plaintiff's second argument challenging the ALJ's evaluation of all the evidence of record.

         II. STANDARD OF REVIEW

         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).

         III. DISCUSSION

         Of primary concern to the court in this case is the ALJ's allocation of “little weight” to the VA's disability finding. Docket 8, p. 21. This is contrary to Fifth Circuit precedent holding that a VA disability rating, while not binding in social security disability proceedings, constitutes evidence “entitled to great weight.” Latham v. Shalala, 36 F.3d 482, 483 (5th ...


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