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Spivey v. Berryhill

United States District Court, S.D. Georgia, Dublin Division

January 17, 2018

OWEN FOSKEY SPIVEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS, UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA

         Owen Foskey Spivey appeals the decision of the Acting Commissioner of Social Security denying his application for Disability Insurance Benefits (“DIB”) under the Social Security Act. Upon consideration of the briefs submitted by both parties, the record evidence, and the relevant statutory and case law, the Court REPORTS and RECOMMENDS pursuant to sentence six of 42 U.S.C. § 405(g), the Commissioner's final decision be REVERSED and the case be REMANDED to the Commissioner for further consideration in accordance with this opinion.

         I. BACKGROUND

         Plaintiff applied for DIB in July of 2013, alleging a disability onset date of January 1, 2013. Tr. (“R.”), pp. 187-89. Plaintiff's last insured date for purposes of the DIB application is December 31, 2017. R. 187. Plaintiff was fifty-two years old on his alleged disability onset date. Plaintiff applied for benefits based on allegations of chronic obstructive pulmonary disorder (“COPD”), heart condition, anxiety, depression, and illiteracy. R. 191. Plaintiff has an eighth grade education, and, prior to his alleged disability, Plaintiff had accrued relevant work history performing paint and body work for a construction company. R. 192.

         The Social Security Administration denied Plaintiff's applications initially, R. 67, and on reconsideration, R. 84. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), R. 96, and the ALJ held a hearing on May 19, 2015. R. 28-51. At the hearing, the ALJ heard testimony from Plaintiff, who was represented by counsel, as well as from Ken Bennett, a Vocational Expert (“VE”). Id. On June 19, 2015, the ALJ issued an unfavorable decision. R. 8-25.

         Applying the sequential process required by 20 C.F.R. § 404.1520, the ALJ found:

1. The claimant has not engaged in substantial gainful activity since January 1, 2013, the alleged onset date (20 C.F.R. §§ 404.1571 et seq.).
2. The claimant has the following severe impairments: malingering, learning disorder, COPD, and alcohol abuse (20 C.F.R. § 404.1520(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526).
4. The claimant has the RFC to perform medium work as defined in 20 C.F.R. § 404.1567(c) with frequent climbing of stairs.[1] He can frequently balance, stoop, kneel, crouch, and crawl. He can occasionally climb ladders. He can have occasional exposure to pulmonary irritants. He is limited to performing simple routine tasks. He can have occasional interaction with co-workers but should never work with the public. Thus, the claimant is capable of performing past relevant work (20 C.F.R. § 404.1565).

R. 13-21.

         When the Appeals Council (“AC”) denied Plaintiff's request for review, R. 1-3, the Commissioner's decision became “final” for the purpose of judicial review. 42 U.S.C. § 405(g). Plaintiff then filed this civil action requesting reversal or remand of that adverse decision.

         Plaintiff argues the ALJ (1) erroneously found Plaintiff's full scale IQ score of 51 did not meet Listing 12.05B; and (2) failed to state the amount of weight given to Dr. Marvin L. Long. See doc. no. 8 (“Pl.'s Br.”) & doc. no. 12 (“Pl.'s Reply”). Plaintiff also argues for remand in order for the ALJ to consider a 2017 psychological evaluation by Dr. John C. Whitley. Pl.'s Reply, pp. 4-6. The Commissioner maintains the decision to deny Plaintiff benefits is supported by substantial evidence and should therefore be affirmed. See doc. no. 11 (“Comm'r's Br.”). As explained below, reversal and remand is appropriate under sentence six of 42 U.S.C. § 405(g) because the 2017 evaluation by Dr. Whitley is new, material evidence and Plaintiff has shown good cause for its recent submission.

         II. ...


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