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Hamilton v. Berryhill

United States District Court, S.D. Mississippi, Northern Division

May 3, 2018

MARTY S. HAMILTON PLAINTIFF
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY DEFENDANT

          MEMORANDUM OPINION AND ORDER

          LINDA R. ANDERSON, UNITED STATES MAGISTRATE JUDGE

         Marty S. Hamilton appeals the final decision denying his applications for disability insurance benefits (DIB) and supplemental security income (SSI). The Commissioner requests an order pursuant to 42 U.S.C. § 405(g), affirming the final decision of the Administrative Law Judge. Having carefully considered the hearing transcript, the medical records in evidence, and all the applicable law, the Court finds that the decision should be remanded.

         On January 22, 2013, Hamilton filed applications for DIB and SSI alleging a disability onset date of October 12, 2011, due to torn muscles, hip muscle pain, sciatica nerve damage, and arthritis. He was 50 years old on his alleged onset date, and had a high school education. He had previous work experience in a furniture store, as a school bus driver, and as a landscape worker. Following agency denials of his applications, an Administrative Law Judge (“ALJ”) rendered an unfavorable decision finding that he had not established a disability within the meaning of the Social Security Act. The Appeals Council denied Plaintiff's request for review. He filed the instant appeal on November 3, 2016, but he has since passed away.[1]

         At step one of the five-step sequential evaluation, [2] the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date. At steps two and three, the ALJ found that Plaintiff's degenerative disc disease, acute infarct, osteoarthritis, sciatica, status post amputation of right foot/toe, coronary artery disease (CAD), peripheral vascular disease (PVD), and diabetes mellitus were severe, but did not meet or medically equal any listing. At step four, the ALJ found that Plaintiff had the residual functional capacity to perform light work except he can:

lift/carry 20 pounds occasionally and 10 pounds, frequently, stand/walk for two hours for 20 minutes at a time, and sit for six hours for two hours at a time during an eight-hour workday. He can occasionally stoop and climb but no crouching, kneeling, or crawling. The claimant can push/pull less than 10 pounds with the lower extremities. Due to occasional lower extremity numbness, he cannot feel texture and cannot operate foot controls. The claimant would use a cane to walk for more than 10 minutes.[3]

         Based on vocational expert testimony, the ALJ concluded that given Plaintiff's age, education, work experience, and residual functional capacity, he could perform work as a charge account clerk, merchandise marker, and cashier.

         Standard of Review

         Judicial review in social security appeals is limited to two basic inquiries: “(1) whether there is substantial evidence in the record to support the [ALJ's] decision; and (2) whether the decision comports with relevant legal standards." Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996) (citing Carrier v. Sullivan, 944 F.2d 243, 245 (5th Cir. 1991)). Evidence is substantial if it is “relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion; it must be more than a scintilla, but it need not be a preponderance." Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995) (quoting Anthony v. Sullivan, 954 F.2d 285, 295 (5th Cir. 1992)). This Court may not re-weigh the evidence, try the case de novo, or substitute its judgment for that of the ALJ, even if it finds evidence that preponderates against the ALJ's decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994).

         Discussion

         Plaintiff contends that this case should be reversed or alternatively remanded for several reasons. He argues that the ALJ failed to find chronic skin infections were a separate severe impairment at step two; failed to support his step three finding with substantial evidence; erred in finding that Plaintiff can perform other jobs in the economy; failed to fully develop the record; and, failed to change his age category. He also asserts the Appeals Council erred in failing to review new and material evidence. For the reasons that follow, this case is remanded for further administrative review.

         Plaintiff's medical records reflect a history of chronic skin infections caused by complications of coronary artery disease, peripheral vascular disease, and uncontrolled diabetes mellitus. At the administrative hearing, Plaintiff testified that, inter alia, he cannot feel his feet because of diabetic neuropathy, and has difficulty with his right leg because of pulled muscles and a torn sciatic nerve. He also strains to pick up his 30-pound grandson; cannot perform household chores for any length of time; can only stand between 10-15 minutes at a time; walks approximately 100 feet before his hip begins to hurt; and, uses a cane for balance when he walks. In determining that Plaintiff can perform a reduced range of light work, the ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to produce some of his alleged symptoms, but his testimony regarding the intensity, persistence, and limiting effects was not fully credible.[4]

         As his first point of error, Plaintiff argues that the ALJ failed to find that his chronic skin infections were a severe impairment at step two. The Commissioner counters that this argument is moot because the ALJ ultimately found Plaintiff's diabetes mellitus, “which encapsulates all of his objectively verifiable skin issues” was a severe impairment. Generally, the failure to make a severity finding at step two is not grounds for reversal or remand when the ALJ finds other severe impairments and proceeds with the sequential evaluation. Adams v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987) (failure to make a severity finding at step two not a basis for remand where ALJ proceeded to later steps of the analysis). However, throughout the disability determination process, the ALJ is required to consider the combined effects of any impairments “without regard to whether any such impairment, if considered separately, would be of sufficient severity.” Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) (quoting 20 C.F.R. § 404.1523).

         A review of the ALJ's decision in this case reflects that the ALJ summarily concluded at step three that the claimant did not meet or equal a listing. The Court chiefly considers Plaintiff's argument that the ALJ failed to evaluate his chronic skin infections to determine whether it met Listing 8.04 for Skin Disorders. The ALJ's step-three analysis was as follows:

None of the claimant's physical impairments has the required attendant findings as any impairment contained in Appendix 1. The claimant's heart condition does not have the same attendant findings for any impairment contained in section 4.00 et. seq. of Appendix 1. Specific consideration has been given to Listings 1.04 and 4.12. Diabetes mellitus is no longer a valid impairment ...

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