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Johnson v. Berryhill

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

May 28, 2019

JIMMY D. JOHNSON, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations of the Social Security Administration, Performing the Duties and Functions Not Reserved to the Commissioner of Social Security, Defendant.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS, UNITED STATES MAGISTRATE JUDGE.

         Jimmy D. Johnson appeals the decision of the Deputy Commissioner for Operations of Social Security denying his application for Supplemental Security Income (“SSI”) 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 the Commissioner's final decision be AFFIRMED, this civil action be CLOSED, and a final judgment be ENTERED in favor of the Commissioner.

         I. BACKGROUND

         Plaintiff applied for SSI on October 15, 2014, alleging a disability onset date of September 1, 2006. Tr. (“R.”), p. 38. Plaintiff was fifty-three years old on the date he filed his application, and fifty-five years old at the time of the Administrative Law Judge's decision (“ALJ”). R. 17, 24. Plaintiff applied for benefits based on allegations of human immunodeficiency virus (“HIV”), back problems, knee problems, and mental problems. R. 17, 60, 68. Plaintiff completed high school and a few courses at a technical college. R. 39, 213. Plaintiff served in the United States Marine Corps from 1980 to 1985, and starting after 2002, Plaintiff worked part time in maintenance by painting and doing small repairs. R. 40-42, 51, 204-205. Additionally, Plaintiff has a significant criminal history, which includes approximately twenty-seven felony convictions. R. 42. In prison, Plaintiff worked in the kitchen, primarily cleaning counters and prepping the kitchen for inspection. R. 45-46. The ALJ found Plaintiff's part time jobs were all under substantial gainful activity levels, and he had no past relevant work history within the past fifteen years. R. 42, 51.

         The Social Security Administration denied Plaintiff's applications initially, R. 60-67, and on reconsideration, R. 74-81. Plaintiff requested a hearing before an ALJ, R. 94, and the ALJ held a hearing on February 7, 2017. R. 29-59. At the hearing, the ALJ heard testimony from Plaintiff, who was not represented by counsel, as well as from Kenneth L. Bennett, a Vocational Expert (“VE”). Id. On May 8, 2015, the ALJ issued an unfavorable decision. R. 12-28.

         Applying the sequential process required by 20 C.F.R. § 416.920, the ALJ found:

1. The claimant has not engaged in substantial gainful activity since October 15, 2014, the application date (20 C.F.R. §§ 416.971 et seq.).
2. The claimant has the following severe impairment: human immunodeficiency virus (HIV) (20 C.F.R. § 416.920(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. §§ 416.920(d), 416.925, and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant should avoid work that involves handling food and pulmonary irritants. The claimant has no past relevant work (20 C.F.R. § 416.965).
5. Considering the claimant's age, education, work experience, and Residual Functioning Capacity (“RFC”), there are jobs that exist in significant No. in the national economy that the claimant can perform (20 C.F.R. §§ 416.969 and 416.969(a)). Therefore, the claimant has not been under a disability, as defined in the Social Security Act, since October 15, 2014, the date of the application was filed (20 C.F.R. § 416.920(g)).

R. 17-24.

         When the Appeals Council (“AC”) denied Plaintiff's request for review, R. 7-11, the Commissioner's decision became “final” for the purpose of judicial review. 42 U.S.C. § 405(g). Plaintiff argues the ALJ's decision is not supported by substantial evidence because: (1) the ALJ failed to find Plaintiff is disabled as a result of his HIV; (2) the ALJ erred in finding Plaintiff has not been under a disability since October 15, 2014 because of his prior applications; (3) the ALJ failed to find Plaintiff's HIV met a Listing at step three; and (4) the ALJ incorrectly considered Plaintiff's HIV and other impairments in determining Plaintiff's RFC. See doc. no. 21 (“Pl.'s Br.”). The Commissioner maintains the decision to deny Plaintiff benefits is supported by substantial evidence and should therefore be affirmed. See doc. no. 24 (“Comm'r's Br.”).

         II. STANDARD OF REVIEW

         Judicial review of social security cases is narrow and limited to the following questions: (1) whether the Commissioner's findings are supported by substantial evidence, and (2) whether the Commissioner applied the correct legal standards. Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). When considering whether the Commissioner's decision is supported by substantial evidence, the reviewing court may not decide the facts anew, reweigh the evidence, or substitute its judgment for the Commissioner's. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005); Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). Notwithstanding this measure of deference, the Court remains obligated to scrutinize the whole record to determine whether substantial evidence supports each essential administrative finding. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

         The Commissioner's factual findings should be affirmed if there is substantial evidence to support them. Barron v. Sullivan, 924 F.2d 227, 230 (11th Cir. 1991). Substantial evidence is “more than a scintilla, but less than a preponderance: ‘[i]t is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.'” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth, 703 F.2d at 1239). If the Court finds substantial evidence exists to support the Commissioner's factual findings, it must uphold the Commissioner even if the evidence preponderates in favor of the claimant. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004). Finally, the Commissioner's findings of fact must be grounded in the entire record; a decision that focuses on one aspect of the evidence and disregards other contrary evidence is not based upon substantial evidence. McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir. 1986).

         The deference accorded the Commissioner's findings of fact does not extend to her conclusions of law, which enjoy no presumption of validity. Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991) (holding judicial review of Commissioner's legal conclusions are not subject to substantial evidence standard). If the Commissioner fails either to apply correct legal standards or to provide the reviewing court with the means to determine whether correct legal standards were in fact applied, the Court must reverse the decision. Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).

         III. DISCUSSION

         Plaintiff argues the ALJ's decision is not supported by substantial evidence because: (1) the ALJ failed to find Plaintiff is disabled as a result of his HIV; (2) the ALJ erred in finding Plaintiff has not been under a disability since October 15, 2014 because of his prior applications; (3) the ALJ failed to find Plaintiff's HIV met a Listing at step three; and (4) the ALJ incorrectly considered Plaintiff's HIV and other impairments in determining Plaintiff's RFC. See Pl.'s Br. The Commissioner argues in response: (1) the ALJ properly evaluated Plaintiff's impairments; (2) those impairments did not meet or medically equal a listed impairment; (3) the ALJ's RFC finding was supported by substantial evidence; and (4) the ALJ properly found Plaintiff was not disabled. Comm'r's Br., pp. 5-19.

         A. The Sequential Evaluation Process

         The Eleventh Circuit has outlined the five-step sequential process for evaluating a claim for disability benefits as follows:

1. Is the individual performing substantial gainful activity?
2. Does he have a severe impairment?
3. Does he have a severe impairment that meets or equals an impairment specifically listed in 20 C.F.R. Part 404, Subpart P, Appendix 1?
4. Can he perform he past relevant work?
5. Based on his age, education, and work experience, can he perform other work of the sort found in the national economy?

Phillip v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004) (citing 20 C.F.R. § 404.1520).

         At step one, if the claimant is doing substantial gainful activity, the process stops, and a claimant is determined to be “not disabled.” Id. If the claimant is not doing substantial gainful activity, the process proceeds to step two. Id. In this case, the ALJ determined Plaintiff had not engaged in substantial gainful activity since he alleged onset date, R. 17, and moved on to step two.

         B. The ALJ Properly Evaluated Plaintiff's Severe Impairments at Step Two

         At step two, the regulations instruct that a severe impairment is one which significantly limits one's ability to perform “basic work activities.” 20 C.F.R. § 416.922(a) (“An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities.”). Basic work activities involve ...


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