United States District Court, D. South Carolina, Greenville Division
Carolyn J. Harrison, Plaintiff,
Carolyn W. Colvin, Commissioner of Social Security,  Defendant.
REPORT OF MAGISTRATE JUDGE
KEVIN F. McDONALD, Magistrate Judge.
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
The plaintiff, who is proceeding pro se, brought this action pursuant to Section 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. §§ 405(g) and 1383(c)(3)) to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for supplemental security income ("SSI") benefits under Title XVI of the Social Security Act.
The plaintiff filed an application for SSI on July 15, 2010, alleging that she became unable to work on January 1, 2000. The application was denied initially on October 18, 2010, and on reconsideration on February 4, 2011, by the Social Security Administration. On March 7, 2011, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff and her attorney appeared on July 2, 2012, considered the case de novo, and on August 22, 2012, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended. The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on April 17, 2013. The plaintiff then filed this action for judicial review.
The plaintiff filed a prior Title XVI application on November 13, 2002, alleging disability since January 1, 2000. This claim was denied by an ALJ on July 28, 2006. On October 28, 2008, the Appeals Council affirmed the ALJ's decision. Thus, the ALJ decision of July 28, 2006, remains final and binding, and the doctrine of administrative res judicata applies with regard to the period through July 28, 2006. See, e.g., Cleaton v. Sec'y of Health and Human Servs., 815 F.2d 295, 297-301 (4th Cir. 1987); and McGowen v. Harris, 666 F.2d 60, 65-69 (4th Cir. 1981). Accordingly, the current decision addresses the time period from July 15, 2010, the date of her current application for SSI, through August 22, 2012, the date of the decision.
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant has not engaged in substantial gainful activity since July 15, 2010, the application date (20 C.F.R § 416.971 et seq ).
(2) The claimant has the following severe impairments: osteoarthritis of the right foot/ankle, osteoarthritis, carpal tunnel syndrome, and chronic low back pain (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, I find that the claimant has the residual functional capacity to perform the full range of light work as defined in 20 C.F.R. § 416.967(b). She can stand and/or walk about six hours in and eight-hour workday and sit about six hours in an eighthour workday.
(5) The claimant has no past relevant work (20 C.F.R. § 416.965).
(6) The claimant was born on December 30, 1958, and was 51 years old, which is defined as an individual closely approaching advanced age, on the date the application was filed (20 C.F.R. § 416.963).
(7) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. § 416.964).
(8) Transferability of job skills is not an issue because the claimant does not have past relevant work (20 C.F.R. § 416.968).
(9) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 416.969 and 416.969(a)).
(10) The claimant has not been under a disability, as defined in the Social Security Act, since July 15, 2010, through the date the application was filed (20 C.F.R. § 416.920(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
The Social Security Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). "Disability" is defined in 42 U.S.C. § 423(d)(1)(A) as:
the inability 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 at least 12 consecutive months.
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that equals an illness contained in the Social Security Administration's Official Listings of Impairments found at 20 C.F.R. Part 4, Subpart P, App. 1, (4) has an impairment that prevents past relevant work, and (5) has an impairment that prevents him from doing substantial gainful employment. 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).
A plaintiff is not disabled within the meaning of the Act if he or she can return to past relevant work as it is customarily performed in the economy or as the claimant actually performed the work. SSR 82-62, 1982 WL 31386, at *3. The plaintiff bears the burden of establishing his or her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5). The plaintiff must make a prima facie showing of disability by showing he or she is unable to return to his or her past relevant work. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983).
Once an individual has established an inability to return to his or her past relevant work, the burden is on the Commissioner to come forward with evidence that the plaintiff can perform alternative work and that such work exists in the regional economy. The Commissioner may carry the burden of demonstrating the existence of jobs available in the national economy which the plaintiff can perform despite the existence of impairments which prevent the return to past relevant work by obtaining testimony from a vocational expert. Id.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the correct law was applied. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. See Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). The phrase "supported by substantial evidence" is defined as:
evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is "substantial evidence."
Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citation omitted).
Thus, it is the duty of this court to give careful scrutiny to the whole record to assure that there is a sound foundation for the Commissioner's findings and that the conclusion is rational. Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
In November 2009, the plaintiff presented to Springs Memorial Hospital emergency department in Lancaster, South Carolina, complaining of soreness in her shoulders and legs after getting into a "tussel [sic]" (Tr. 216, 218). She was given Toradol and was discharged (Tr. 220). In March 2010, the plaintiff presented to the hospital's emergency department requesting medication for low-back pain, which she rated as a 6/10 (Tr. 209). She was given Toradol and was discharged (Tr. 213). In May 2010, the plaintiff presented to the hospital's emergency department complaining of right foot pain after falling off her steps (Tr. 200). X-rays showed mild soft tissue swelling and a "bipartite or potentially fractured" tibial sesamoid. However, there was no swelling or deformity upon clinical examination (Tr. 204, 207). The plaintiff was given Tramadol and was discharged fifteen minutes later with no pain (Tr. 204-05). Approximately one week later, the plaintiff requested a walking boot so that she could attend a graduation ceremony. She was in no acute distress and had normal range of motion and motor strength in all four extremities (Tr. 365-66). Less than three weeks later, the plaintiff appeared ...