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Nance v. Commissioner of Social Security

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

February 14, 2017

JOHNNY NANCE PLAINTIFF
v.
COMMISSIONER OF SOCIAL SECURITY DEFENDANT

          MEMORANDUM OPINION

          ROY PERCY UNITED STATES MAGISTRATE JUDGE

         Plaintiff Johnny Nance, under 42 U.S.C. § 405(g), seeks judicial review of the decision of the Commissioner of Social Security denying his application for supplemental security income (SSI) payments under Section 1614(a)(3) of the Act. Plaintiff protectively filed an application for benefits on December 16, 2011, alleging disability beginning on April 1, 2011. His claim was denied initially on March 29, 2012, and upon reconsideration on May 22, 2012. He filed a request for hearing and was represented by counsel at the hearing held on January 17, 2014. The Administrative Law Judge (ALJ) issued an unfavorable decision on March 27, 2014, and on February 18, 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, the court finds this case should be remanded to the Social Security Administration.

         I. FACTS

         Plaintiff was born on May 19, 1959 and was 54 years old at the time of the hearing. He has a high school education and has past relevant work as a grave digger and construction worker. Plaintiff contends that he became disabled before his application for benefits due to “nerve damage, right foot condition, skull fracture, . . . [left] foot condition, excessive swelling of leg, depression, anxiety.” Docket 13 at 138.

         The ALJ determined plaintiff suffered from “severe” impairments including status post gunshot wound to right lower leg/ankle area, insertional tendonitis in the Achilles tendon, and depression, but the ALJ found these impairments did not meet or equal a listed impairment in 20 C.F.R. Part 404, Subpart P, App. 1 (20 CFR 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

lift/carry twenty pounds occasionally and ten pounds frequently; stand/walk four hours in an eight-hour workday; and sit up to six hours in an eight-hour workday. The claimant cannot climb or crouch but can occasionally balance, stoop, kneel, and crawl. The claimant cannot work around heights. He can occasionally work around moving machinery and can occasionally drive. He is capable of understanding, remembering, and carrying out simple job tasks and job instructions. He can sustain attention and concentration for two-hour periods in an eight-hour workday. He can occasionally interact with supervisors and co-workers.

         Docket 13 at 15. 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 the VE, the ALJ held that plaintiff could perform jobs that exist in the national economy such as a small products assembler, cashier II and wiper. Docket 13 at 19. As a result, the ALJ concluded that plaintiff is not disabled under the Social Security Act. Id.

         On appeal, plaintiff contends the ALJ erred in mechanically applying the Medical-Vocational Guidelines.[1] The court agrees and remands the case for further consideration of plaintiff's borderline age at the time of the ALJ's decision.

         II. STANDARD OF REVIEW

         In determining disability, the Commissioner, through the ALJ, works through a five-step sequential evaluation process.[2] 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.[3] First, plaintiff must prove he is not currently engaged in substantial gainful activity.[4] Second, plaintiff must prove his impairment is “severe” in that it “significantly limits [his] physical or mental ability to do basic work activities . . . .”[5] 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).[6] 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.[7] 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.[8] 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.[9]

         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, [10] even if it finds that the evidence leans against the Commissioner's decision.[11] 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

         Nance claims the ALJ erred when he mechanically applied the Medical-Vocational guidelines, commonly called the grids, and did not consider plaintiff's borderline age situation. This court addressed such an issue in Horsley v. Colvin, Civil Action No. 1:12CV273, -DAS, 2014 WL 1213467 (N.D. Miss. 2014), in which opinion the court set forth the framework for addressing ...


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