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Moore v. Berryhill

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

April 28, 2017

NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security DEFENDANT



         Plaintiff Amelia Faye Moore has applied for judicial review under 42 U.S.C. § 405(g) of the Commissioner of Social Security's decision denying her application for disability insurance benefits (DIB) under Title III of the Social Security Act, 42 U.S.C. §§ 416(i), 423. Docket 1. Plaintiff filed an application for benefits on January 31, 2011, alleging disability beginning on May 11, 2007. Docket 7 at 99-102.

         The agency administratively denied Plaintiff's claim initially on June 9, 2011 and on reconsideration on August 18, 2011. Docket 7 at 53-56. Plaintiff requested an administrative hearing, which Administrative Law Judge (ALJ) Rebecca B. Sartor held on November 29, 2012. Id. at 66-67; 76-81. The ALJ issued an unfavorable decision on December 10, 2012. Id. at 9-23. The Appeals Counsel denied Plaintiff's request for review on March 12, 2013. Id. at 1-4. Plaintiff timely filed an appeal from the March 12, 2013 decision and on June 4, 2015, this Court entered a Final Judgment reversing and remanding the ALJ's decision with the specific instruction that the ALJ “clarify the residual functional capacity assessment.” Id. at 390-391 (Moore v. Colvin, 1:14-cv-87-DAS (N.D. Miss. Final Judgment dated June 4, 2015)).

         On remand, the ALJ held a second hearing on December 10, 2015. Id. at 434-38; Docket 19 at 533-66. The ALJ issued a second unfavorable decision on June 3, 2016, from which Plaintiff appealed to this Court. Docket 7 at 294-309. The undersigned held a hearing on March 22, 2017, and the matter is now ripe for review.

         Because both parties have consented to a magistrate judge conducting 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. Docket 13.

         I. FACTS

         Plaintiff was born on April 6, 1965, and was 47 at the time of the first ALJ hearing on November 29, 2012. Docket 7 at 101, 33. Plaintiff graduated high school and attended three years of college but did not obtain a degree. Id. at 33-34. Plaintiff contends she became disabled as a result of anxiety attacks, mental conditions, depression, and a nervous breakdown in 2007. Id. at 115. At the first ALJ hearing, Plaintiff stated that she began having anxiety and panic attacks in 2007 leading up to and around the time she left her job in March 2007 because of the alleged severity of her various mental conditions. Id. at 34-36. She testified that, despite taking medication, she experiences anxiety attacks whenever she leaves home and is never able to go anywhere by herself. Id. at 37-38. Plaintiff stated that she experiences anxiety or panic attacks on at least half of the days of the month, which results in depressive episodes. Id. at 38-39. Plaintiff's children are homeschooled, and she occasionally assists with their computer-based curriculum and meal preparation. Id. 40-43. Out of a seven-day week, Plaintiff testified that she may be able to fully function for eight hours in her home “probably two to three days.” Id. at 45.

         On December 10, 2012, the ALJ determined that Plaintiff experienced the severe impairments of anxiety and depression but that Plaintiff's impairments did not meet or medically equal a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. (404.1520(d), 404.1525, and 404.1526). Id. at14. Considering Plaintiff's severe impairments of anxiety and depression, the ALJ found that Plaintiff's demonstrated abilities were consistent with a Residual Functional Capacity (RFC) to perform a full range of work at all exertional levels, including routine repetitive tasks, but with the following nonexertional limitations: no interaction with the public and only occasional interaction with co-workers; no production pace work. Id. at 14, 17. The ALJ formulated this conclusion based on the State agency psychological consultant's assessment, hearing testimony, and the cumulative record evidence. Id. Ultimately the ALJ found Plaintiff to be not disabled. Id. at 23.

         Plaintiff appealed the ALJ's decision and this Court found that “the ALJ's decision, specifically the finding of the plaintiff's residual functional capacity is not supported by substantial evidence.” Id. at 390. The Court elaborated that the consulting examiner found that Plaintiff's capacity for concentration, persistence, and pace were poor; however, the state disability examiner found that Plaintiff could maintain her concentration for two-hour blocks during an eight-hour day. Id. In light of the consultative examiner's findings as well as “voluminous evidence from treating sources” as to Plaintiff's poor ability to maintain concentration, persistence, and pace, the Court found that “the contrary opinion of a non-examining disability determination doctor is to insufficient to support the decision.” Id. The Court sought greater specificity regarding Plaintiff's ability to perform “routine repetitive tasks, but no production pace work” and remanded the case to the ALJ “to clarify the residual functional capacity assessment.” Id. at 390-91.

         On December 10, 2015, the ALJ held a second hearing at which time Plaintiff was 50 years of age. Docket 19 at 540. Because Plaintiff had recently suffered from a stroke, her husband testified on her behalf that around the date of the ALJ's first decision, December 2012, Plaintiff was unable to provide any significant contribution to daily household activities like cooking and cleaning and was unable to be active and work eight hours a day at any task. Id. at 542-43. Plaintiff's husband testified that she exhibited paranoid behaviors on outings to the grocery store and that he could not recall his wife's ability to sustain her concentration and attention on anything for two hours at a time. Id. at 546, 551.

         In her decision dated June 3, 2016, the ALJ determined that Plaintiff had the RFC to perform work at all exertional levels and retained the ability to perform routine, repetitive tasks; she was capable of occasional interaction with co-workers and supervisors but not the public; and she could not perform work at a production rate pace. Docket 7 at 301. The vocational expert testified that an individual with Plaintiff's age, education, work experience, and RFC would be able to perform the jobs of an office helper, a checker I, and a sampler. Id. at 308-309; Docket 19 at 559. Notably, the vocational expert stated that one's inability “to sustain attention and concentration for two hours at a time […] would rule out virtually all jobs at all levels.” Docket 19 at 560. The ALJ ultimately ruled that Plaintiff had not been under a disability, as defined in the Social Security Act, at any time from May 11, 2007, through December 31, 2012. Id. at 308-309.

         Plaintiff asserts that the ALJ failed to comply with the Final Judgment entered on June 4, 2015 reversing and remanding the ALJ's decision with the specific instruction to “clarify the residual functional capacity assessment.” Docket 10. Plaintiff also claimed that the ALJ's finding at Step 3 was contrary to the opinions of the treating and consulting sources; however, at the hearing, counsel for Plaintiff conceded this argument and proceeded only with the argument regarding the ALJ's failure to “clarify the residual functional capacity assessment.”[2] Docket 10.


         In determining disability, the Commissioner, through the ALJ, works through a five-step sequential evaluation process.[3] The burden rests upon the plaintiff throughout the first four steps of this five-step process to prove disability, and if the plaintiff is successful in sustaining her burden at each of the first four levels, then the burden shifts to the Commissioner at step five.[4]First, the plaintiff must prove she is not currently engaged in substantial gainful activity.[5]Second, the plaintiff must prove her impairment is “severe” in that it “significantly limits [her] physical or mental ability to do basic work activities . . . .”[6] At step three the ALJ must conclude that plaintiff is disabled if she proves that her 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).[7]If the plaintiff does not meet this burden, at step four she must prove that she is incapable of meeting the physical and mental demands of her past relevant work.[8] At step five, the burden shifts to the Commissioner to prove, considering the plaintiff's residual functional capacity, age, education and past work experience, that she is capable of performing other work.[9] If the Commissioner proves other work exists which the plaintiff can perform, plaintiff is given the chance to prove that she cannot, in fact, perform that work.[10]


         Judicial review of the Commissioner's final decision to deny benefits is limited to determining whether the decision is supported by substantial evidence and whether the Commissioner applied 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). A court has limited power of review ...

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