United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
SONJA F. BIVINS, Magistrate Judge.
Plaintiff Malcholm Jemal Hale (hereinafter "Plaintiff"), who is proceeding pro se, seeks judicial review of a final decision of the Commissioner of Social Security denying his claim for a period of disability, disability insurance benefits, and supplemental security income under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401, et seq., and 1381, et seq. This action was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Upon consideration of the administrative record and memoranda of the parties, it is RECOMMENDED that the decision of the Commissioner be AFFIRMED.
I. Procedural History
Plaintiff protectively filed an application for a period of disability, disability insurance benefits, and supplemental security income on June 30, 2009. (Tr. 188). Plaintiff alleges that he has been disabled since July 5, 2009, due to asthma, shortness of breath, coughing, and weakness. (Id. at 188, 210). Plaintiff's applications were denied and upon timely request, he was granted an administrative hearing before Administrative Law Judge Michael L. Levinson (hereinafter "ALJ") on January 14, 2011. (Id. at 141-44). On January 24, 2011, ALJ Levinson issued an unfavorable decision finding that Plaintiff is not disabled. (Id. at 144). Plaintiff appealed that decision to the Appeals Council, which denied review. Plaintiff then sought review before the United States District Court for the Northern District of Alabama, which remanded the case pursuant to sentence six because the hearing transcript was not available. (Id. at 3, 71).
On remand, Administrative Law Judge (hereinafter "ALJ") Roger A. Nelson conducted a second hearing on July 20, 2012, which Plaintiff attended, pro se. (Id. at 87). At the second hearing, Plaintiff was apprised of his right to have counsel, and he elected to proceed without counsel and provided testimony related to his claims. (Id. at 92, 105). A vocational expert ("VE"), also appeared at the hearing and provided testimony. (Id. at 119). On October 2, 2012, ALJ Nelson issued a second unfavorable decision finding that Plaintiff is not disabled. (Id. at 81). On October 25, 2012, Plaintiff appealed that decision to the Appeals Council, which denied review on August 13, 2013. (Id. at 1).
Thus, the ALJ's decision dated October 2, 2012 became the final decision of the Commissioner. Having exhausted his administrative remedies, Plaintiff timely filed the present civil action. (Doc. 1). The parties agree that this case is now ripe for judicial review and is properly before this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
II. Issue on Appeal
A. Whether substantial evidence supports the ALJ's RFC assessment?
III. Factual Background
Plaintiff was born on May 16, 1988, and was twenty-four years of age at the time of his second administrative hearing on July 20, 2012. (Tr. 87, 188). Plaintiff testified that he graduated from the University of Alabama at Birmingham ("UAB) in 2011 with a B.A. in Business Administration. (Id. at 107). Plaintiff testified that, prior to graduation, from 2005 to 2009, he worked as a waiter at various restaurants, but since graduation, he has been looking for a desk job. (Id. at 114-16). Plaintiff testified that he applied for jobs at Regions Bank, Wachovia Bank, and Wells Fargo but was not hired after telling them that he had been fired as a waiter because of his asthma. (Id. at 114).
Plaintiff testified that he is unable to work because of his asthma, which causes him to avoid most physical activities, including running and sports. (Id. at 112). In his Function Report dated August 20, 2009, Plaintiff also stated that he constantly coughs throughout the day and night and that his asthma affects his sleep. (Id. at 192-93). According to Plaintiff, his asthma also makes him tired and weak, which makes it difficult for him to drive or attend to his personal needs. (Id. at 193-94).
Plaintiff stated that he lives alone, that he drives when necessary, that he shops online, cooks, does laundry and ironing, and that he is able to handle his own finances. (Id. at 194-95). Plaintiff reported that he can lift fifty pounds, squat for ten minutes, stand for fifteen to twenty minutes, walk thirty feet, and climb one staircase. (Id. at 197).
According to Plaintiff, his medications help after he takes them; however, they only last about three hours, and he can only take them twice a day. (Id. at 113, 192). Plaintiff's medications include Advair, Singulair, and ProAir. (Id. at 106-07). Plaintiff reported that he has had no side effects from his medications. (Id. at 214).
A. Standard of Review
In reviewing claims brought under the Act, this Court's role is a limited one. The Court's review is limited to determining 1) whether the decision of the Secretary is supported by substantial evidence and 2) whether the correct legal standards were applied. Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). A court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). The Commissioner's findings of fact must be affirmed if they are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (holding substantial evidence is defined as "more than a scintilla, but less than a preponderance" and consists of "such relevant evidence as a reasonable person would accept as adequate to support a conclusion."). In determining whether substantial evidence exists, a court must view the record as a whole, taking into account evidence favorable, as well as unfavorable, to the Commissioner's decision. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4 (S.D. Ala. June 14, 1999).
An individual who applies for Social Security disability benefits must prove his or her disability. 20 C.F.R. §§ 404.1512, 416.912. Disability is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a). The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven his disability. 20 C.F.R. §§ 404.1520, 416.920.
In the case sub judice, following remand and a de novo hearing, the ALJ determined that Plaintiff has not engaged in substantial gainful activity since July 5, 2009, the alleged onset date, and that he has the severe impairment of chronic asthma. (Tr. 74). The ALJ further found that Plaintiff does not have an impairment or combination of impairments that meets or medically ...