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Howell v. Berryhill

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

June 2, 2017

JAMES D. HOWELL PLAINTIFF
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY DEFENDANT

          MEMORANDUM OPINION

          Roy Percy UNITED STATES MAGISTRATE JUDGE

         Plaintiff James D. Howell has filed suit under 42 U.S.C. § 405(g) seeking 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. Plaintiff filed an application for benefits on October 8, 2013 alleging disability beginning on February 5, 2013. His claim was denied initially on December 18, 2013 and upon reconsideration on January 14, 2014. He filed a request for hearing and was represented by counsel at the hearing held on June 4, 2015. The Administrative Law Judge (ALJ) issued an unfavorable decision on August 25, 2015, and on September 1, 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.

         I. FACTS

         Plaintiff was born on February 27, 1961 and has a high school education. Docket 8, p. 69. He was fifty-four years old at the time of the hearing, and at the time of the ALJ's decision he was six months shy of age fifty-five and the next age category of persons of advanced age. Plaintiff's past relevant work was as a mechanic. Id. at 97. Plaintiff contends that he became disabled before his application for benefits as a result of “back problems, groin pain, possible hernia, arthritis in hips, degenerative disc disease, cyst on left kidney, 35% overall hearing loss, left and right rotator cuff problems, separated ac joint-had surgery, sinus issues, chest pains, short winded, exposed to carc dust on last job.” Id. at 201.

         The ALJ determined that plaintiff suffered from “severe” impairments including “degenerative disc disease of the lumbar spine and osteoarthrosis, ” (Docket 8, p. 49), but that 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 and 404.1526). Id. at 50. 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 light work as defined in 20 CFR 404.1567(b) except he can only occasionally stoop and crouch.

Docket 8, p. 51. After 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 credible. Id. at 52. After evaluating all of the evidence in the record, including testimony of a VE, the ALJ held that plaintiff could perform the jobs of a parking lot attendant, cafeteria attendant and usher. Id. at 56. As a result, the ALJ concluded that plaintiff is not disabled under the Social Security Act. Id.

         Plaintiff contends that the ALJ erred failed to order a consultative examination despite plaintiff's request which resulted in a flawed RFC, she improperly concluded that plaintiff's mental issues were non-severe, and she improperly assumed that plaintiff's gap in treatment was due to a lack of need of treatment. Because the undersigned concludes that this case should be remanded for a CE, the remaining issues need not be addressed.

         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

         Plaintiff contends the ALJ erred in electing not to order a consultative examination requested by plaintiff's counsel despite a lack of medical opinions from any treating or examining source, even after the MRI of plaintiff's back in 2015 showed a worsened condition. The Commissioner posits that “the ALJ properly determined that the evidence as a whole supported her determination that Plaintiff could perform light work with only ...


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