United States District Court, S.D. Georgia, Dublin Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS, UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF
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.
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.
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.
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,
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. 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).
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
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