United States District Court, N.D. Mississippi, Greenville Division
M. VIRDEN U.S. MAGISTRATE JUDGE.
cause is before the Court on Plaintiff's Complaint 
for judicial review of an unfavorable final decision of the
Commissioner of the Social Security Administration (agency)
denying a claim for supplemental security income (SSI). The
parties have consented to entry of final judgment by the
United States Magistrate Judge under the provisions of 28
U.S.C. § 636(c), with any appeal to the Court of Appeals
for the Fifth Circuit. The Court, having reviewed the
administrative record, the briefs of the parties, and the
applicable law, and having heard oral argument, finds as
and Procedural History
protectively applied for SSI under Title XVI of the Social
Security Act (Act) on February 10, 2016. The agency denied
Plaintiff's application initially and upon
reconsideration. Pursuant to Plaintiff's request, the
administrative law judge (ALJ) held a hearing on July 17,
2017. The ALJ issued a decision denying Plaintiff's
application for SSI benefits on September 20, 2017.
September 20, 2017 decision, the ALJ found that Plaintiff had
not engaged in substantial gainful activity since his
application date of February 10, 2016. The ALJ found
Plaintiff's only severe impairment was his bipolar
disorder. Next, the ALJ determined that Mr. Evans did not
have an impairment, or a combination of impairments, that met
or equaled an impairment found in the Appendix 1 Listing of
Impairments. The ALJ found that Plaintiff had the residual
functional capacity (RFC) to perform work at all exertional
levels. The ALJ further found that Plaintiff could perform
simple tasks that involve working with data and things,
rather than with people; working in low stress environments
that involve occasional decision-making; and dealing with
occasional changes in the work setting. The ALJ determined
that Plaintiff's allegations regarding his functional
limitations were not fully supported. Plaintiff had no
relevant past work. Based upon the testimony of a vocational
expert, the ALJ found that other work was available in
significant numbers in the national economy for someone of
Plaintiff's vocational profile. Thus, the ALJ concluded
that Plaintiff was not disabled.
25, 2018, the Appeals Council denied Plaintiff's request
for review of the ALJ's decision, thereby making the
ALJ's decision the final decision of the Commissioner and
the case reviewable pursuant to Section 205(g) of the Act, 42
U.S.C. § 405(g). Plaintiff filed his Complaint  for
review of the ALJ's decision in this Court on July 13,
Court held oral argument on Mr. Evans's disability appeal
on July 16, 2019. Plaintiff had raised two issues in his
1. The ALJ incorrectly assessed plaintiff's mental
limitations and, as a result, failed to arrive at an adequate
2. The Appeals Council failed to consider evidence from
Licensed Counselor Sherri Kent.
during the hearing the undersigned raised concern that the
waxing / waning nature of Mr. Evans' symptomology was not
reflected in the RFC finding of the ALJ. Specifically, the
undersigned framed the issue in terms of the ALJ's
failure to consider the claimant's lability as it related
to his ability to work on a continuous basis. The Court
allowed, upon the Commissioner's request, additional
briefing on the issue. The Court did not require, and
Plaintiff did not submit, supplemental briefing.
Nevertheless, Plaintiff sufficiently adopted the issue raised
by the Court during the July 16 hearing.
review under 42 U.S.C. § 405(g) is limited to two
inquiries: (1) whether substantial evidence in the record
supports the Commissioner's decision and (2) whether the
decision comports with proper legal standards. See Villa
v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990).
“Substantial evidence is ‘such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.'” Greenspan v. Shalala, 38
F.3d 232, 236 (5th Cir. 1994) (quoting Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d
842 (1971)). “It is more than a mere scintilla, and
less than a preponderance.” Spellman v.
Shalala, 1 F.3d 357, 360 (5th Cir. 1993) (citing
Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir.
1990)). “A decision is supported by substantial
evidence if ‘credible evidentiary choices or medical
findings support the decision.'” Salmond v.
Berryhill, 892 F.3d 812, 817 (5th Cir. 2018) (citations