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Moses v. Berryhill

United States District Court, M.D. Alabama, Southern Division

January 25, 2017

ARLEAN MOSES, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.

          MEMORANDUM OPINION

          CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         This is the plaintiff's third case before this court.[2] Plaintiff Arlean Moses (“Moses”) filed applications for disability insurance benefits and supplemental security income on August 19, 2008, alleging disability beginning on July 10, 2008. (R. 889). Her applications were denied at the initial administrative level on June 23, 2010. The plaintiff then requested and received a hearing before an Administrative Law Judge (“ALJ”). Following the hearing, the ALJ also denied the claim. The Appeals Council rejected a subsequent request for review. After the Appeals Council denied review, Moses appealed to this court which remanded the case to the Commissioner on February 29, 2012. Moses v. Astrue, Civ. Act. No. 1:11cv581-CSC (M.D. Ala. 2012).

         Moses subsequently filed another application for benefits which was denied by a different ALJ on March 6, 2012. On April 23, 2013, the Appeals Council issued an order vacating the June 23, 2010 decision and the March 6, 2012 decision, consolidating the cases, and remanding the cases for further consideration. The Appeals Council directed the ALJ to associate the cases and render a single decision.

         On August 20, 2014, the ALJ held another administrative hearing at which Moses, two medical experts and a vocational expert testified. On January 16, 2015, the ALJ issued a decision denying Moses benefits. (R. 889-914). The Appeals Council rejected a subsequent request for review. Thus, the ALJ's August 20, 2014 decision became the final decision of the Commissioner of Social Security (Commissioner).[3] See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).

         The case is now before the court for review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). The parties have consented to the United States Magistrate Judge conducting all proceedings in this case and ordering the entry of final judgment, pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1. Based on the court's review of the record in this case and the briefs of the parties, the court concludes that the decision of the Commissioner should be affirmed.

         II. Standard of Review

         Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the person is unable 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 . . .

         To make this determination, [4] the Commissioner employs a five-step, sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.

(1) Is the person presently unemployed?
(2) Is the person's impairment severe?
(3) Does the person's impairment meet or equal one of the specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of “not disabled.”

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).[5]

         The standard of review of the Commissioner's decision is a limited one. This court must find the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U.S.C. § 405(g); Ingram v. Comm. of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007); Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). “Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004). A reviewing court may not look only to those parts of the record which supports the decision of the ALJ but instead must view the record in its entirety and take account of evidence which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986). The court “may not decide the facts anew, reweigh the evidence, or substitute . . . [its] judgment for that of the [Commissioner].” Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004) (alteration in original) (quotation marks omitted).

[The court must] . . . scrutinize the record in its entirety to determine the reasonableness of the [Commissioner's] . . . factual findings . . . No similar presumption of validity attaches to the [Commissioner's] . . . legal conclusions, including determination of the proper standards to be applied in evaluating claims.

Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

         III. The Issue

         A. Introduction. The plaintiff was 40 years old on the alleged date of onset and almost 47 years old on the date of the administrative hearing.[6] (R. 912, 959). She completed high school. (R. 912). Her past work experience includes work as a sales clerk, hairstylist, and child monitor. (Id.). The ALJ concluded that the plaintiff has severe impairments of “bilateral carpal tunnel syndrome status post release; bilateral cubital tunnel syndrome status post release; fibromyalgia; degenerative disc disease of the cervical spine status post fusion; degenerative disc disease of the lumbar spine; asthma; depression; and bipolar disorder.” (R. 892). The ALJ also concluded that Moses' “Grave's disease, plantar fasciitis, insomnia, migraines, hypertension, left knee pain, fibroids, and obsessive compulsive disorder” were non-severe impairments. (Id.). The ALJ concluded that the plaintiff was unable to perform her past relevant work, but, using the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P., App. 2, as a framework and relying on the testimony of a vocational expert, he also concluded that there were significant number of jobs in the national economy that Moses could perform. (R. 912-13). Accordingly, the ALJ concluded that Moses was not disabled. (R. 914).

         B. The Plaintiff's Claim. As stated by the plaintiff, the sole issue before the court is whether “[t]he ALJ erred by failing to properly consider Ms. Moses' fibromyalgia equaled a listing.” ...


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