United States District Court, S.D. Alabama, Southern Division
JAMES M. HARMAN, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
F. BIVINS UNITED STATES MAGISTRATE JUDGE.
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
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
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).
Issues on Appeal
1. Whether the ALJ reversibly erred by finding
Plaintiff's supraventricular tachycardia, degenerative
disc disease, and asthma to be non-severe
2. Whether substantial evidence supports the
ALJ's Residual Functional Capacity
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?
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).
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).
Standard of Review
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. 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).
Statutory and Regulatory Framework
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.
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.
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