United States District Court, N.D. Mississippi, Oxford Division
PERCY, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.