United States District Court, D. South Carolina
For Shirley Mae Segar, Plaintiff: Sharon B Capers, LEAD ATTORNEY, Sharon B Capers Law Office, Charleston, SC.
For Commissioner of the Social Security Administration, Defendant: Marshall Prince, LEAD ATTORNEY, U.S. Attorneys Office, Columbia, SC.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Kaymani D. West, United States Magistrate Judge.
This appeal from a denial of social security benefits is before the court for a Report and Recommendation (" Report") pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and 5 U.S.C. § 706 to obtain judicial review of the final decision of the Commissioner of Social Security (" Commissioner") denying her claim for Disability Insurance Benefits (" DIB") and Supplemental Security Income (" SSI") pursuant to the Social Security Act (" the Act"). The issues before the court are whether the decision is supported by substantial evidence, and whether the Commissioner's decision contains an error of law. For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed.
I. Relevant Background
A. Procedural History
On March 16, 2011,  Plaintiff filed applications for DIB and SSI alleging a disability onset date of February 4, 2010. Tr. 122-35. After being denied both initially and on reconsideration, Tr. 48-54, on November 22, 2011, Plaintiff requested a hearing before an Administrative Law Judge (" ALJ"), Tr. 68-69. On April 29, 2012, the ALJ conducted a hearing, taking testimony from Plaintiff, her daughter, and a vocational expert (" VE"). Tr. 23-47. The ALJ issued a decision on May 8, 2012, denying Plaintiff's claims. Tr. 9-18. The Appeals Council subsequently denied Plaintiff's request for review, thereby making the ALJ's decision the Commissioner's final administrative decision for purposes of judicial review. Tr. 1-4. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on April 18, 2013. ECF No. 1.
B. Plaintiff's Background and Medical History
Plaintiff, born on March 26, 1949, was 60 years old as of her alleged onset date of February 4, 2010. Tr. 122. She completed the eleventh grade and did not attend special education classes. Tr. 159. Plaintiff did not complete any specialized job training or vocational school. Id. Plaintiff's prior work history includes cleaner at a motel and at a power plant. Tr. 159. Plaintiff alleged that her ability to work is limited by problems with her wrist, back, joint pain, acid reflux and nerves. Tr. 158.
2. Medical History
On October 5, 2010, Plaintiff, seeking blood pressure medication and acid reflux medication, was seen by Dr. Stuart C. Owens. Tr. 252. Plaintiff returned to Dr. Owens on April 21, 2011, seeking arthritis and GERD medications. Tr. 251. Dr. Owens's examination noted multiple tender joints consistent with arthritis and he prescribed Atenolol/chlorthalidone 50/25 daily, Nexium daily, Clinoril 200 mg twice daily, and Lortab 5 at night to help her sleep. Id.
On June 28, 2011, Plaintiff underwent a disability examination by Dr. Marcus Schaefer. Tr. 234-37. Plaintiff was evaluated for " allegations/diagnoses of wrist, back, and joint pains; acid reflux and nerves; joint and back problems." Tr. 234. Dr. Schaefer's musculoskeletal exam of Plaintiff noted that her " range of the cervical spine is decreased 75 percent with complaints of left greater than right neck pain." Tr. 236. Dr. Schaefer noted Plaintiff had full range of motion in her right and left shoulders and normal range of motion of her elbows, wrists, and fingers. Id. Her hand grasp strength was 60 pounds, 55 pounds, and 60 pounds on the right and 50 pounds, 45 pounds, and 45 pounds on the left. Id. Plaintiff demonstrated " somewhat unsteadiness with the tandem gait occasionally using walls for support." Id. Plaintiff was able to walk on her heels and toes and perform a full squat. Id. After reviewing Plaintiff's medical records and performing a physical examination of Plaintiff, Dr. Schaefer's summary contains the following conclusions:
She is able to do light house work and walk for approximately one quarter mile. She has had problems holding a job in the last three to four years because she misses work for abdominal pain and bothering aches and pains. At 62 she is in a very difficult job market for the type of job that she can do which are probably housekeeping and related activities of medium department of labor category work and she should be in the light category of work.
On August 31, 2011, x-rays were made of Plaintiff's right shoulder and lumbar spine. Tr. 239-240. The impression of the right shoulder was unremarkable, and the impression of the lumbar spine indicated " [s]table appearance of mild levoconvex scoliosis of the lumber spine and mild degenerative changes within the lower lumbar spine." Tr. 240.
On September 8, 2011, Jean Smolka, M.D., a non-examining state agency physician, reviewed the record and assessed Plaintiff's physical residual functional capacity (" RFC"). Tr. 241-48. Dr. Smolka found that Plaintiff was capable of lifting and carrying 50 pounds occasionally and 25 pounds frequently, walking/standing/sitting at least six hours in an eight-hour workday (with normal breaks), and unlimited restrictions for pushing and/or pulling. Tr. 242. She found that Plaintiff could frequently climb ramps/stairs and occasionally climb ladders, ropes, or scaffolds. Tr. 243. She opined Plaintiff could frequently balance, stoop, kneel, crouch, and crawl. Id. Dr. Smolka found Plaintiff was limited in her ability to reach in all directions including overhead, but no other manipulative limitations. Tr. 244. She also found no visual, communicative, or environmental limitations. Tr. 244-45. Based on her review of Dr. Schaefer's exam and the x-rays, Dr. Smolka found that the " objective and cumulative medical evidence fails to support the degree of restrictions indicated by [Dr. Schaefer's] statement which appears to be based largely on [Plaintiff's] age. Additionally single contact[.] No treating relationship. Given little [weight]." Tr. 247.
A second RFC assessment was completed by Dr. Tom Brown on October 10, 2011. Tr. 253-260. Dr. Brown found that Plaintiff was capable of lifting and carrying 20 pounds occasionally and 10 pounds frequently, walking/standing/sitting at least six hours in an eight-hour workday (with normal breaks), and unlimited restrictions for pushing and/or pulling. Tr. 254. He found that Plaintiff could occasionally climb ramps/stairs and never climb ladders, ropes, or scaffolds. Tr. 255. He opined Plaintiff could frequently balance and occasionally stoop, kneel, crouch, and crawl. Id. Dr. Brown found Plaintiff had no manipulative, visual, communicative, or environmental limitations. Tr. 256-57. With regard to the severity of Plaintiff's symptoms, Dr. Brown noted that Plaintiff's allegations of weight loss were not credible, but her allegation of " joint pains is credible, she has osteoarthritis but x-rays do not indicate severe degenerative changes." Tr. 258.
On October 10, 2011, Lisa Clausen, Ph.D. completed a Psychiatric Review Technique form for Plaintiff. Tr. 261-75. She noted a non-severe impairment of depression in the category of affective disorders. Tr. 261, 264. In the " B" criteria of the Listings, Dr. Clausen noted mild functional limitations in the areas of Restriction of Activities of Daily Living; Difficulties in Maintaining Social Functioning; Difficulties in Maintaining Concentration, Persistence, or Pace; and no Episodes of Decompensation. Tr. 271. She noted the evidence did not establish the presence of the " C' criteria. Tr. 272. Dr. Clausen concluded:
The allegation of " nerves" is consistent with the MER indicating a [history] of depression. However, there is no description of any severe [symptoms] of depression or anxiety and the [symptoms] have not been troubling enough to the [Plaintiff] to follow through with any [mental health treatment]. Overall, the [symptoms] of a mental condition are mild and would not impose a substantial limitation on work-related functions.
Plaintiff underwent a cervical MRI on November 12, 2012 for her complaints of pain in her right shoulder and neck. Tr. 279. The findings indicated mild disc bulges with no stenosis and the impression was " [s]cattered mild spondylosis. No severe stenosis or neural impingement." Id.
C. The Administrative Hearing
1. Plaintiff's Testimony
Plaintiff, her counsel, and a witness appeared in person and a VE appeared via telephone at her administrative hearing on April 19, 2012. See Tr. 23-47. Plaintiff testified that she had self-employment earnings from the previous year based on work she did supervising her daughter as she cleaned houses. Tr. 27-29. Plaintiff stated that she last worked for PPM at Santee Cooper doing janitorial work. Tr. 31-32. Plaintiff stated she was fired because she was sick and missed too many days. Tr. 32. Plaintiff testified that she also worked previously at Econo-Lodge for ten years doing cleaning and janitorial work. Id. She stated she had not done any other type of work. Tr. 33.
Plaintiff testified that her 19-year-old granddaughter recently moved out of her home and Plaintiff now lives alone. Tr. 33. However, Plaintiff's daughter and her daughter's two sons live next door and they come over and assist her. Id. Plaintiff stated that during the day, after she gets herself bathed and dressed, she may " wash a little dishes" or attempt to cook. Tr. 34. Plaintiff stated she is seen by doctors at the Sumter Free Clinic. Id. Plaintiff was recently given a prescription to have an MRI done on her shoulder because of pain she was having in her shoulder and back. Tr. 35. Plaintiff testified that the problems that bother her the most are her right arm, right shoulder, and entire right side. Tr. 36. She stated those were the issues she was having while working at Santee Cooper but they were getting worse. Tr. 37. Plaintiff testified that she tried to vacuum her floor and her " back was hurting so bad [she] couldn't even sit straight." Id. Plaintiff testified that when she was fired from Santee Cooper she was " penalized" for eight weeks. Id. She stated she was taking a lot of time off because she had acid reflux, a hernia, and back trouble. Id. Plaintiff testified that x-rays of her right wrist revealed " gaps" in her wrist and that she is unable to hold anything heavy in her right hand. Tr. ...