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Powell v. Berryhill

United States District Court, N.D. Alabama, Northeastern Division

September 21, 2018

NANCY A. BERRYHILL, Deputy Commissioner for Operations of the Social Security Administration, Defendant.



         The plaintiff, Leornzie Powell, appeals from the decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his application for a period of disability, Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”). Powell timely pursued and exhausted his administrative remedies, and the decision of the Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). The parties have consented to the exercise of dispositive jurisdiction by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 9).

         I. Introduction

         Powell was 54 years old on the date of the ALJ's opinion. (Tr. at 35, 395). He attended high school through the tenth grade. (Tr. at 407). His past work experience includes employment as a circus laborer, materials handler, dishwasher, stable hand, brake drum repairer, and kitchen helper. (Tr. at 101-02). Powell claims that he became disabled on October 3, 2008, due to “seizures, heart trouble, diabetes, high blood pressure, and memory loss.” (Tr. at 402). However, during his second hearing, he amended his disability onset date to December 1, 2009. (Tr. at 19, 359).

         When evaluating the disability of individuals over the age of eighteen, the regulations prescribe a five-step sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The first step requires a determination of whether the claimant is “doing substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If he is, the claimant is not disabled and the evaluation stops. Id. If he is not, the Commissioner next considers the effect of all of the physical and mental impairments combined. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These impairments must be severe and must meet the durational requirements before a claimant will be found to be disabled. Id. The decision depends on the medical evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If the claimant's impairments are not severe, the analysis stops. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the analysis continues to step three, which is a determination of whether the claimant's impairments meet or equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant's impairments fall within this category, he will be found disabled without further consideration. Id. If they do not, a determination of the claimant's residual functional capacity will be made and the analysis proceeds to the fourth step. 20 C.F.R. §§ 404.1520(e), 416.920(e). Residual functional capacity (“RFC”) is an assessment, based on all relevant evidence, of a claimant's remaining ability to do work despite his or her impairments. 20 C.F.R. § 404.945(a)(1).

         The fourth step requires a determination of whether the claimant's impairments prevent him or her from returning to past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do his past relevant work, the claimant is not disabled and the evaluation stops. Id. If the claimant cannot do past relevant work, then the analysis proceeds to the fifth step. Id. Step five requires the court to consider the claimant's RFC, as well as the claimant's age, education, and past work experience, in order to determine if he can do other work. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can do other work, the claimant is not disabled. Id. The burden is on the Commissioner to demonstrate that other jobs exist which the claimant can perform; and, once that burden is met, the claimant must prove his inability to perform those jobs in order to be found disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).

         Applying the sequential evaluation process, the ALJ found that Mr. Powell meets the nondisability requirements for a period of disability and DIB and was insured through September 30, 2010. (Tr. at 22). She further determined that Powell has not engaged in substantial gainful activity since the amended alleged onset date of his disability. (Tr. at 22). According to the ALJ, the plaintiff has the following impairments that are considered “severe, ” based on the requirements set forth in the regulations: seizure disorder, hypertension, history of alcohol abuse, pain disorder, depressive disorder, anxiety disorder, personality disorder, and borderline intellectual functioning. (Tr. at 22). However, she found that these impairments neither meet nor medically equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 23). The ALJ did not find Powell's allegations relating to the limiting effects of these impairments to be entirely credible (tr. at 26), and she determined that he has the following residual functional capacity:

After careful consideration of the entire record, the undersigned finds that the claimant has the following residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except: he can lift and carry 25 pounds frequently and 50 pounds occasionally; he can walk for 1 hour in an 8-hour day, stand for 2 hours in an 8-hour day, and sit for 6 hours in an 8-hour day; he is limited to occasional balancing, stooping, and climbing ramps and stairs; he is limited to occupations which do not require climbing ladders, ropes, and scaffolds; he must be afforded the option to sit or stand for 1 to 2 minutes every hour or so at the workstation just to break up the standing, walking, or sitting; he should avoid dangerous, moving, unguarded machinery and unprotected heights; he can understand, remember, and carry out simple instructions and tasks; he is limited to jobs involving infrequent and well explained work place changes; he is limited to occasional interaction with the general public; he can frequently tolerate interaction with coworkers; and he can concentrate and remain on task for 2 hours at a time, sufficient to complete an 8-hour workday.

(Tr. at 25).

         According to the ALJ, Mr. Powell is unable to perform any of his past relevant work, he is “closely approaching advanced age, ” and he has a “limited education, ” as those terms are defined by the regulations. (Tr. at 33). She determined that “[t]ransferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is ‘not disabled,' whether or not he has transferable job skills.” (Tr. at 33). Based on the testimony of a vocational expert (“VE”), the ALJ found that Mr. Powell has the residual functional capacity to perform light “work that exists in significant numbers in the national economy.” (Tr. at 34). Even though additional limitations impede Plaintiff's “residual functional capacity to perform the full range of light work, ” the ALJ determined that Plaintiff “would be able to perform the requirements of representative occupations such as product marker . . ., hand packager . . ., and an assembler . . . .” (Tr. at 34). The ALJ concluded her findings by stating that Plaintiff “has not been under a disability, as defined in the Social Security Act, from December 1, 2009, through the date of this decision.” (Tr. at 34).

         II. Standard of Review

         This court's role in reviewing claims brought under the Social Security Act is a narrow one. The scope of its review is limited to determining (1) whether there is substantial evidence in the record as a whole to support the findings of the Commissioner, and (2) whether the correct legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). The court approaches the factual findings of the Commissioner with deference, but applies close scrutiny to the legal conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). “Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Mitchell v. Commissioner, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014). The court may not decide facts, weigh evidence, or substitute its judgment for that of the Commissioner. Miles, 84 F.3d at 1400. “The substantial evidence standard permits administrative decision makers to act with considerable latitude, and ‘the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.'” Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Federal Mar. Comm'n, 383 U.S. 607, 620 (1966)). Indeed, even if this court finds that the evidence preponderates against the Commissioner's decision, the court must affirm if the decision is supported by substantial evidence. Miles, 84 F.3d at 1400. No. decision is automatic, however, for “despite this deferential standard [for review of claims] it is imperative that the court scrutinize the record in its entirety to determine the reasonableness of the decision reached.” Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987). Moreover, failure to apply the correct legal standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).

         III. Discussion

         Mr. Powell argues that the ALJ's decision should be reversed and remanded for three reasons. First, he asserts that the ALJ failed to allow his hearing counsel to question him about whether his mental functioning had improved since his second ALJ hearing, [1] thus constituting an abuse of discretion in violation of the Administrative Procedures Act and resulting in the denial of effective representation. (Doc. 10, p. 7). Second, the plaintiff contends that the RFC is not supported by substantial evidence because the limitations included in the plaintiff's RFC are inconsistent with the regulatory definition of light work. (Doc. 10, p. 10). Third, Powell maintains that the ALJ improperly rejected the newer examining source opinions in favor of older examining and non-examining opinions. (Doc. 10, p. 13).

         A. Full and Fair Record

         Mr. Powell argues that, during the third administrative hearing, the ALJ precluded his counsel from questioning him about whether “he recalled Dr. [John Paul] Schosheim's testimony” at the previous hearing. The plaintiff asserts that he intended to demonstrate that his mental functioning had declined since the previous hearing by using Dr. Schosheim's previous testimony as a metric. Because the Appeals Council directed the ALJ to evaluate Dr. Schosheim's opinion on remand, the Plaintiff contends that it was appropriate for his counsel to “elicit testimony from Plaintiff regarding the state of his mental functioning, using Dr. Schoshiem's [sic] prior testimony as a metric.” (Doc. 10, p. 9). His counsel asserts that the plaintiff's testimony, as to the level of his improvement (or lack thereof), “would have been critical to the issue of disability.” (Doc. 10, p. 9). Therefore, the plaintiff asserts that the ALJ's denial amounted to an abuse of discretion and denied the plaintiff due process. The Commissioner counters that the ALJ developed a full and fair record and asserts that the plaintiff has not demonstrated prejudice.

         The transcript of the June 2016 administrative hearing records the following colloquy:

Q: The second time you went to the hearing?
A: Oh, yes.
Q: And do you recall there being a medical expert there that testified?
A: Yes.
ALJ: All right, and don't go back over what happened at prior hearings.
ALJ: -- and don't have him testify as to what a doctor said during the hearings. I want him to testify as to what his problems are and why he can't work.
ATTY: Yes, Your Honor, I was -- my next question was going to be[, ] have you experienced any improvement in your symptoms since that time?
CLMT: No, sir.
ATTY: Okay. So, and -- ALJ: All right. We're starting out fresh today. I don't care what happened in ...

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