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Hymes v. Commissioner of Social Security

United States District Court, M.D. Florida, Tampa Division

September 20, 2019

CEDRIC LAMONT HYMES, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER

          MARKA.PIZZO UNITED STATES MAGISTRATE JUDGE

         This is an action for review of the administrative denial of disability insurance benefits (DIB), period of disability benefits, and Supplemental Security Income benefits (SSI). See 42 U.S.C. §§ 405(g), 1383(c)(3). Plaintiff argues the Administrative Law Judge (ALJ) erred by failing to consider all of his alleged impairments; finding him capable of light work despite a prior finding that he could only perform sedentary work; and by failing to properly evaluate his credibility. He also asserts the Appeals Council erred in concluding the additional evidence he submitted was not new and material and denying his request for review of the ALJ’s decision. After considering the parties’ joint memorandum (doc. 17) and the administrative record, I conclude the Appeals Council erred in denying Plaintiff’s request for review.

         A. Background

         Plaintiff, who was born in 1971, claimed disability beginning November 22, 2014 (R. 246, 150). Plaintiff obtained an eleventh-grade education (R. 296). His past relevant work experience included work as a warehouse worker or order puller (R. 70-71). Plaintiff alleged disability due to human immunodeficiency virus (“HIV”), a heart condition, shortness of breath, back pain, and dizziness (Tr. 295).

         In rendering the administrative decision, the ALJ concluded that Plaintiff met the insured status requirements through December 31, 2017, and that Plaintiff had not engaged in substantial gainful activity since November 22, 2014, the alleged onset date (R. 14). After conducting a hearing and reviewing the evidence of record, the ALJ determined Plaintiff had the following severe impairments: HIV with acquired immunodeficiency syndrome (“AIDS”), hyperlipidemia, obesity, and a breathing disorder, claimed as chronic obstructive pulmonary disease (“COPD”) (R. 14). Notwithstanding the noted impairments, the ALJ determined Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (R. 15). The ALJ then concluded that Plaintiff retained a residual functional capacity (“RFC”) to perform light work, except that Plaintiff could not climb ropes or scaffolds; could occasionally climb ladders and stairs, stoop, kneel, crouch, and crawl; could frequently balance, climb ramps, reach, and handle; must avoid concentrated/frequent exposure to extreme cold, extreme heat, excessive vibration, environmental irritants, and industrial hazards; could not work in food preparation jobs; and limited to any continuous standing or continuous walking up to 20 minutes, followed by an option to sit for up to 5 minutes (R. 16). In formulating Plaintiff’s RFC, the ALJ considered Plaintiff’s subjective complaints and determined that, although the evidence established the presence of underlying impairments that reasonably could be expected to produce the symptoms alleged, Plaintiff’s statements as to the intensity, persistence, and limiting effects of his symptoms were not entirely consistent with the medical evidence and other evidence (R. 17).

         Considering Plaintiff’s noted impairments and the assessment of a vocational expert (“VE”), however, the ALJ determined Plaintiff could not perform his past relevant work (R. 18). Given Plaintiff’s background and RFC, the VE testified that Plaintiff could perform other jobs existing in significant numbers in the national economy, such as a photo copier/scanner, mail sorter (private industry), and clerical addresser (R. 19). Accordingly, based on Plaintiff’s age, education, work experience, RFC, and the testimony of the VE, the ALJ found Plaintiff not disabled (R. 11). On appeal, Plaintiff submitted additional evidence to the Appeals Council, however the Appeals Council found no reason to review the ALJ’s decision and denied Plaintiff’s request for review (R. 1). Plaintiff, after exhausting his administrative remedies, filed this action.

         B. Standard of Review

         To be entitled to DIB and/or SSI, a claimant must be 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.” See 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “‘physical or mental impairment’ is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” See 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

         The Social Security Administration, to regularize the adjudicative process, promulgated detailed regulations that are currently in effect. These regulations establish a “sequential evaluation process” to determine whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. If an individual is found disabled at any point in the sequential review, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Under this process, the Commissioner must determine, in sequence, the following: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment(s) (i.e., one that significantly limits her ability to perform work-related functions); (3) whether the severe impairment meets or equals the medical criteria of Appendix 1, 20 C.F.R. Part 404, Subpart P; (4) considering the Commissioner’s determination of claimant’s RFC, whether the claimant can perform her past relevant work; and (5) if the claimant cannot perform the tasks required of her prior work, the ALJ must decide if the claimant can do other work in the national economy in view of her RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). A claimant is entitled to benefits only if unable to perform other work. See Bowen v. Yuckert, 482 U.S. 137, 142 (1987); 20 C.F.R. § 404.1520(f), (g); 20 C.F.R. § 416.920(f), (g).

         In reviewing the ALJ’s findings, this Court must ask if substantial evidence supports those findings. See 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 390 (1971). The ALJ’s factual findings are conclusive if “substantial evidence consisting of relevant evidence as a reasonable person would accept as adequate to support a conclusion exists.” Keeton v. Dep’t of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citation and quotations omitted). The Court may not reweigh the evidence or substitute its own judgment for that of the ALJ even if it finds the evidence preponderates against the ALJ’s decision. See Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). The Commissioner’s “failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining the proper legal analysis has been conducted mandates reversal.” Keeton, 21 F.3d at 1066 (citations omitted).

         C. Discussion

         1. Appeals Council

         When he requested Appeals Council review, Plaintiff submitted additional evidence, a two-page Mental Residual Functional Capacity Assessment, a six-page report, and IQ test results from psychologist Gregory C. Marone, Ed.D., dated May 4, 2018, six months after the ALJ’s unfavorable decision. In denying review, the Appeals Council found the additional evidence did not relate to the period at issue, and therefore it did not affect the decision about whether he was disabled on or before November 7, 2017 (R. 2). Plaintiff asserts the Appeals Council should have granted review because the additional evidence he submitted was new and material, and related to the period at issue. I agree.

         Title 20 C.F.R. § 404.970 sets forth the circumstances when the Appeals Council will review the ALJ’s decision. When Plaintiff requested Appeals Council review on November 16, 2017, a revised version of § 404.970, effective on January 17, 2017, was in force. The 2017 version of § 404.970 ...


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