Powell v. Comm'r of Soc. Sec.

UNDRA POWELL, PLAINTIFF v. COMMISSIONER OF SOCIAL SECURITY, DEFENDANT

CIVIL ACTION NO. 3:19-CV-918-HTW-RPM

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION

February 2, 2021

REPORT AND RECOMMENDATION

I. INTRODUCTION

On December 16, 2019, plaintiff Undra Powell ("Powell" or "plaintiff") filed this action under 42 U.S.C. § 405(g), seeking judicial review of the denial by the defendant Commissioner of Social Security ("Commissioner") of his application for supplemental security income ("SSI") under Title XVI of the Social Security Act ("SSA"). Doc. [1].

Powell is a 5'9", 400-pound man, who was 40 years old at the time that he filed for SSI. Doc. [10], at 19-20, 23. He lives alone and has completed the 11th grade. Id., at 20. He most recently worked as a barber, but stopped working due to back pain, feet swelling, and difficulty holding clippers in his hands. Ibid. Powell contends that he is disabled because he suffers from several impairments, including but not limited to degenerative arthritis, lumbar disc disease, peripheral neuropathy, sciatica, and obesity. Id., at 16. The alleged onset of his disability is July 1, 2015. Id., at 14.

II. Procedural History

On July 17, 2015, Powell filed for SSI. Doc. [10], at 16. The Social Security Administration ("Administration") denied Powell's application initially and upon reconsideration. Doc. [10], at 67-68. Thereafter, on December 31, 2015, Powell filed a request for a hearing before an ALJ. Id., at 96-99. On January 18, 2018, Powell had his first hearing in front of an ALJ. Id., at 38. However, since Powell was unable to produce certain medical records at the time of the hearing, a second hearing was held on September 6, 2018. Id., at 53.¹ At the supplemental hearing, the ALJ also received sworn testimony from Vocational Expert ("VE") Dana Lessne. Id., at 55. On November 21, 2018, the ALJ ruled that Powell was not entitled to SSI. Id., at 14-24. Thereafter, Powell filed a timely appeal to the Appeals Counsel ("AC"). The AC denied Powell's request for review, and the appeal, on October 16, 2019. Id., at 5-10. On December 16, 2019, Powell filed the present action. Doc. [1].

III. ALJ's Opinion

In his opinion, the ALJ made the following findings of fact. First, the ALJ concluded that Powell has not engaged in substantial gainful activity since July 17, 2015. Doc. [10], at 16. The ALJ further found that Powell suffered from several "severe" medical impairments, including degenerative arthritis, peripheral neuropathy, sciatica, obesity, and diabetes mellitus. Ibid. At step two, the ALJ also determined that Powell's hypertension and obstructive sleep apnea were medically determinable impairments, but not "severe." Ibid. Next, the ALJ concluded that Powell did not suffer from a severe impairment or combination of impairments that meets or medically equals the severity of one of those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id., at 18.

Next, the ALJ determined Powell's residual functional capacity ("RFC"). Doc. [10], at 19-22. The ALJ concluded that Powell was able to "perform sedentary work as defined in 20 C.F.R. 416.967(a), except that he can lift and/or carry 20 pounds occasionally and 10 pounds frequently." Id., at 19. The ALJ further opined that Powell could: (i) "stand and/or walk for 2 hours in an 8-hour day[;]" (ii) "frequently push and/or pull with [his] upper extremities[;]" (iii) "frequently reach waist to chest with both arms[;]" (iv) "frequently reach above shoulder level with both arms[;]" (v) "constantly handle with both hands, constantly finger with both hands, and frequently feel[;]" (vi) "occasionally work around extreme cold[;]" (vii) "frequently work around extreme heat[;]" and (viii) "frequently work around wetness and humidity, vibration, and pulmonary irritants." Ibid. However, the ALJ also noted several limitations, indicating that Powell (i) "required a stand/sit option with an alternating interval of 1-2 hours[;]" (ii) "must avoid climbing ramps or stairs[;]" (iii) "must avoid climbing ladders or stairs[;]" (iv) "must avoid balancing, stooping, kneeling, crouching, and crawling[;]" and (v) "must avoid working around high, exposed places and moving, mechanical parts." Ibid. In short, the ALJ concluded that the plaintiff's RFC enabled him to do sedentary work with some limitations. Ibid.

Thereafter, the ALJ concluded that Powell could not return to being a barber, his past relevant work. Id., at 22. At step five, the ALJ found that Powell was a "younger" individual age 15-44 because he was 40 years old on the date that he filed for SSI. Id., at 23. Further, the ALJ found that Powell has a limited education and is able to communicate in English. Id., at 23. Thereafter, the ALJ noted that job skill transferability was not material to determining disability because use of the VE rules as a framework supports a finding that Powell is "not disabled," whether or not he has transferable job skills. Ibid. Finally, the ALJ concluded that, considering Powell's age, education, work experience, and RFC, there are jobs that exist in significant numbers, around 60,000, in the national economy that he can perform, including as a clerk, document preparer, and surround-system monitor. Ibid. Thus, the ALJ concluded that Powell was not "disabled" under the SSA. Id., at 24.

IV. Arguments

Powell argues that the ALJ made five errors that mandate remanding the present case for further administrative proceedings. Doc. [11], at 3. First, Powell argues that the ALJ erred in finding that his only "severe impairments" were degenerative arthritis, lumbar disc disease, peripheral neuropathy, sciatica, obesity, and diabetes mellitus. Id., at 11-14. According to Powell, he also suffers from hypertension, sleep apnea, and "heart disease"—which each clear the de minimis hurdle to be considered severe. Id., at 13-14. Second, Powell argues that the medical evidence only supports a finding that he is incapable of sedentary work. Id., at 14-15. Third, Powell argues that the ALJ erred by finding Powell capable of performing sedentary work in contravention of Social Security Ruling ("SSR") 96-9P. Id., at 15-17. Fourth, Powell argues that the ALJ erred by failing to follow SSR 96-8P in formulating his RFC determination and the hypothetical offered at the hearing. Id., at 17-18. Finally, Powell argues that "the administrative law judge declined to follow/fail to correctly apply the law in this case, failed to fairly and fully consider the evidence as required by the administrative procedure and Social Security Acts, and his unfavorable decision is not supported by substantial evidence." Id., at 18.

In opposition, the Commissioner first responds that (i) any error at the second step is harmless because the ALJ proceeded to the subsequent steps in the analysis, and (ii) the ALJ considered these health issues at later steps in the analysis. Doc. [14], at 7-14. Addressing Powell's second argument, the Commissioner responds that (i) whether the ALJ discounted Dr. Lamm's statement that Powell cannot perform his past work as a barber is an issue reserved for the Commissioner, and (ii) Dr. Assaf did not conclude that Powell was incapable of sedentary work, as "sedentary work" is defined under SSR 96-9P. Id., at 20-22. In response to Powell's third argument, the Commissioner responds that the ALJ properly complied with SSR 96-9P because (i) Powell readsDr. Assaf's medical report incorrectly and (ii) the ALJ held a supplemental hearing, in part, so that he could consult a VE. Id., at 17-20. In response to Powell's fourth argument, the Commissioner responds that the ALJ properly determined Powell's RFC and did not need to match his opinion to that of the medical evidence on a function-by-function basis. Id., at 15-17. Finally, the Commissioner argues that the record establishes that the ALJ's decision was supported by substantial evidence. Id., at 22-24.

V. Standard of Review

Under 42 U.S.C. § 405(g), the Court's review is limited to two inquiries: "(1) whether the decision is supported by substantial evidence on the record as a whole, and (2) whether the Commissioner applied the proper legal standard." Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005) (citing Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994)). "Substantial evidence is that which is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion; it must be more than a scintilla, but it need not be a preponderance." Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992) (citing Richardson v. Perales, 402 U.S. 389, 400, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). Stated differently, it "means—and means only—'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Biestek v. Berryhill, 139 S.Ct. 1148, 1154, 203 L.Ed.2d 504 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). However, "[c]onflicts of evidence are for the Commissioner, not the courts, to resolve." Perez, 415 F.3d at 461 (citing Masterson v. Barnhart, 309 F.3d 267, 271 (5th Cir. 2002)).

VI. Five-Step Process Generally

A claimant is "disabled" as defined in the Social Security Act if he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairmentwhich 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). The Commissioner uses a sequential, five-step approach to determine whether a claimant is so disabled. The steps include: "(1) whether the claimant is presently performing substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the impairment prevents the claimant from doing past relevant work; and (5) whether the impairment prevents the claimant...