United States District Court, N.D. Alabama, Northeastern Division
MICHAEL PUTNAM UNITED STATES MAGISTRATE JUDGE
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).
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).
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. §
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
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
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).
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).
Standard of Review
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).
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,  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).
Full and Fair Record
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
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
ALJ: All right, and don't go back over what happened at
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 ...