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Harman v. Berryhill

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

March 28, 2019

JAMES M. HARMAN, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff James M. Harman (hereinafter “Plaintiff”) 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. On October 22, 2018, the parties consented to have the undersigned conduct any and all proceedings in this case. (Doc. 20). Thus, the action was referred to the undersigned to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (Doc. 21). Upon careful consideration of the administrative record and the memoranda of the parties, it is hereby ORDERED that the decision of the Commissioner be REVERSED and REMANDED.

         I. Procedural History[1]

         Plaintiff filed his application for benefits on December 23, 2014, alleging disability beginning July 24, 2012, based on asthma, anxiety, supraventricular tachycardia, shoulder restrictions, blood clot, osteoarthritis in the back, scoliosis, blood pressure, learning problems, and illiteracy. (Doc. 12 at 216). Plaintiff's application was denied and, upon timely request, he was granted an administrative hearing before Administrative Law Judge Warren L. Hammond, Jr. (hereinafter “ALJ”) on January 6, 2017. (Id. at 45, 92). Plaintiff attended the hearing with his counsel and provided testimony related to his claims. (Id. at 48-63). A vocational expert (hereinafter “VE”) also appeared at the hearing and provided testimony. (Id. at 63-66). On April 21, 2017, the ALJ issued an unfavorable decision finding that Plaintiff is not disabled. (Id. at 11). The Appeals Council denied Plaintiff's request for review on January 4, 2018. (Id. at 5). Therefore, the ALJ's decision dated April 21, 2017, became the final decision of the Commissioner. (Id.).

         Having exhausted his administrative remedies, Plaintiff timely filed the present civil action. (Doc. 1). Oral argument was conducted on November 27, 2018 (Doc. 27), and 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. Issues on Appeal

1. Whether the ALJ reversibly erred by finding Plaintiff's supraventricular tachycardia, degenerative disc disease, and asthma to be non-severe impairments?
2. Whether substantial evidence supports the ALJ's Residual Functional Capacity determination?
3. Whether the ALJ reversibly erred at step five of the sequential evaluation process by failing to ask for or identify Dictionary of Occupational Titles (DOT) codes for the jobs that he found Plaintiff could perform?

         III. Factual Background

         Plaintiff was born on January 30, 1978, and was thirty-eight years of age at the time of his administrative hearing on January 6, 2017. (Doc. 12 at 68). Plaintiff reached, but did not complete, the ninth grade in school. (Id. at 49). At his administrative hearing, Plaintiff reported that he can “hardly read or write.” (Id. at 52). Plaintiff worked as a construction worker or laborer from 1997 until 2012. (Id. at 217). According to Plaintiff, he injured his right shoulder while raking asphalt during his most recent employment as a public service worker for Mobile County and has not worked since his injury. (Id. at 51, 346).

         At his hearing, Plaintiff testified he can no longer work because he is basically illiterate and because of back problems, shoulder pain, difficulty breathing, and anxiety. (Id. at 52, 54). Plaintiff's right shoulder was treated with medication, physical therapy, injections, and surgically. (Id. at 287, 299, 302, 331). His heart issues were treated surgically and with medication and monitored by an implantable event monitor and Holter monitor, while his asthma was treated with medication. (Id. at 351, 423, 441, 443, 446, 454). Plaintiff was prescribed medications for his back, such as Naproxen, Zanaflex and Norco. (Id. at 487, 496). Plaintiff was prescribed Valium and Celexa for anxiety in 2012, but he stopped taking anxiety medication in 2013 and has not sought mental health treatment or taken any medications for anxiety since that time. (Id. at 22, 348, 402-03, 407).

         IV. 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 Commissioner is supported by substantial evidence and (2) whether the correct legal standards were applied.[2] 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). “Substantial evidence is 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.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). In determining whether substantial evidence exists, a reviewing court must consider the record as a whole, taking into account evidence both favorable and unfavorable to the Commissioner's decision. Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986) (per curiam); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, at *4 (S.D. Ala. June 14, 1999).

         V. Statutory and Regulatory Framework

         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 whether a claimant has proven his or her disability. 20 C.F.R. §§ 404.1520, 416.920.

         The claimant must first prove that he or she is not engaged in substantial gainful activity. Carpenter v. Comm'r of Soc. Sec., 614 Fed.Appx. 482, 486 (11th Cir. 2015) (per curiam). The second step requires the claimant to prove that he or she has a severe impairment or combination of impairments. Id. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. Id. If the claimant cannot prevail at the third step, the ALJ must determine the claimant's residual functional capacity (“RFC”) before proceeding to step four. Id. A claimant's RFC is an assessment, based on all relevant medical and other evidence, of a claimant's remaining ability to work despite his or her impairments. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Once a claimant's RFC is determined, the evaluation proceeds to the fourth step, where the claimant must prove an inability to perform his or her past relevant work. Carpenter, 614 Fed.Appx. at 486.

         If a claimant meets his or her burden at the fourth step, it then becomes the Commissioner's burden to prove at the fifth step that the claimant is capable of engaging in another kind of substantial gainful employment which exists in significant numbers in the national economy, given the claimant's RFC, age, education, and work history. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985) (per curiam). If the Commissioner can demonstrate that there are such jobs the claimant can perform, the burden then shifts back to the claimant to prove his or her inability to perform ...

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