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Moss v. Commissioner of Social Security

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

July 25, 2017

KEVIN DELANEY MOSS PLAINTIFF
v.
COMMISSIONER OF SOCIAL SECURITY DEFENDANT

          MEMORANDUM OPINION

          ROY PERCY, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Kevin Delaney Moss has applied for judicial review under 42 U.S.C. § 405(g) of the Commissioner of Social Security's decision denying his application for a period of disability and 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 May 9, 2013, alleging disability beginning on March 31, 2012. Docket 7 at 177-78.

         The agency administratively denied Plaintiff's claim initially on June 11, 2013, and on reconsideration on September 3, 2013. Id. at 93-99; 101-108. Plaintiff then requested an administrative hearing, which the Administrative Law Judge (ALJ) held on April 16, 2015. Id. at 126-27; 141-46. The ALJ issued an unfavorable decision on June 29, 2015. Id. at 48-57. On September 28, 2016, the Appeals Council denied Plaintiff's request for review. Id. at 1-4. Plaintiff timely filed this appeal from the September 28, 2016 decision, the undersigned held a hearing on June 8, 2017, and it 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 10.

         I. FACTS

         Plaintiff was born on January 13, 1973 and has been a younger individual since the alleged onset date of March 31, 2012. Id. at 193. Plaintiff has a high school education and past relevant work as a service writer or automobile repair service estimator, automobile mechanic, automobile accessory installer, delivery driver, car salesman, and fire watcher. Id. at 67, 84-86. Plaintiff testified that he has been unable to return to work since March 31, 2012, and contends that he became disabled as a result of problems with his diabetes as well as a broken right leg. Id. at 71.

         At the ALJ hearing, Plaintiff testified that he was diagnosed with type I juvenile diabetes at the age of twelve and has been on insulin ever since. Id. He stated that he has problems controlling his blood sugar and experiences low levels, ranging between 20 and 30, approximately three to four times a week. Id. at 72. He monitors his blood sugar six or seven times a day and requires insulin at least three times a day. Id. at 73. Plaintiff testified that he experiences nerve pain in his feet, predominately his right foot, that is aggravated by standing. Id.

         Plaintiff stated that he suffered injuries to his right leg on two separate occasions that “shattered from [his] knee to [his] ankle” and “broke from [his] kneed to [his] hip and fractured [his] other hip and [his] vertebrae.” Id. at 74-75. Regarding the injury to his right leg, Plaintiff testified that on a daily basis he experiences constant pain from his hip to his ankle. Id. at 76. Between two and three times a week the pain is so severe that he cannot get out of bed, however, Plaintiff does not take any prescription pain medication. Id. Plaintiff stated that he uses a cane to prevent him from falling and estimated that he can sit thirty to forty-five minutes at a time, stand ten to fifteen minutes, and lift and carry five to ten pounds. Id. at 78-79. Plaintiff testified that he cannot bend his right leg and cannot bend forward from a standing position to pick something off the floor. Id. at 76, 79.

         Regarding Plaintiff's everyday activities, he testified that he can take care of his personal needs but has difficulty dressing his lower body. Id. at 77. He stated that he is able to do some household chores but cannot sweep or mop. Id. Plaintiff spends the majority of his day at his parents' house, mostly sitting in a recliner. Id. at 78. When grocery shopping, Plaintiff testified that he is not able to walk much and requires the use of a chair. Id.

         The ALJ established that Plaintiff had not engaged in substantial gainful activity since March 31, 2012, the alleged onset date. Id. at 50. Next, the ALJ found that Plaintiff experienced the severe impairments of insulin dependent diabetes mellitus, L4-5 transvers process fracture, T6-10 compression fracture, and history of right femur and tibiofibular fracture requiring multiple surgeries, 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 (20 C.F.R. 416.920(d), 416.925, and 416.926). Id. at 52-53.

         Considering all of Plaintiff's severe impairments, the ALJ found that Plaintiff's demonstrated abilities were consistent with a Residual Functional Capacity (RFC) to perform sedentary work with the following additional limitations: lift/carry ten pounds occasionally and less than ten pounds frequently; sit six hours in an eight-hour workday; stand/walk two hours in an eight-hour work day; never climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs; occasionally balance and stoop; and never crouch, kneel, or crawl. Id. at 53. In addition to these limitations, Plaintiff requires the option to change positions between sitting and standing every thirty minutes. Id.

         In formulating Plaintiff's RFC, the ALJ afforded little weight to the state agency medical consultants who determined that Plaintiff's diabetes mellitus and lower limb fractures are not severe. Id. at 55. Instead, the ALJ found that “the objective medical evidence establishes that [Plaintiff's] impairments cause significant limitations in functioning.” Id. The ALJ afforded significant weight to state agency psychological consultant Dr. Vicki Prosser, finding her opinion that Plaintiff's mental impairment does not cause more than a minimal limitation in his ability to perform basic mental work activities to be consistent with the record as a whole. Id Based on the ALJ's review of the medical evidence and in conjunction with Plaintiff's testimony, the ALJ concluded that Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible.” The ALJ determined that “the objective medical findings in this case fail to provide strong support for the claimant's allegations of disabling symptoms and limitations” and that “the objective evidence indicates [the] ability to perform more actives than related.” Id. at 54.Ultimately, the ALJ found Plaintiff's allegations regarding his impairments to be “partially credible” yet concluded that Plaintiff's “diabetes has been maintained without complications and that the injuries to his leg have healed with some residual effects that are not completely disabling.” Id. at 55.

         The ALJ determined that Plaintiff is unable to perform any past relevant work, and his ability to perform the full range of sedentary work is impeded by additional limitations. Id. at 56. The ALJ questioned the vocational expert (VE) as to whether jobs exist in the national economy for an individual with Plaintiff's age, education, work experience, and residual functional capacity, to which the VE testified that Plaintiff could perform the requirements of a charge account clerk, a food and beverage order clerk, and a bench hand assembler. Id. The ALJ ultimately ruled that Plaintiff had not been under a disability, as defined in the Social Security Act, from March 31, 2012 through June 29, 2015, the date of the ALJ's decision. Id. at 57.

         Plaintiff claims the ALJ failed to properly consider all of the evidence and that the ALJ's RFC finding with the additional sit/stand limitation supports a finding of disability. Docket 12 at 3.

         II. ...


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