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Dutton v. Colvin

United States District Court, D. South Carolina, Florence Division

December 16, 2014

Carroll Dutton, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant

REPORT AND RECOMMENDATION

Thomas E. Rogers, III,

This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a " final decision" of the Commissioner of Social Security, denying Plaintiff's claim for Supplemental Social Security Benefits (SSI) and Disability Insurance Benefits (DIB). The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.

This case was referred to the undersigned for a report and recommendation pursuant to Local Rule 73.02(B)(2)(a), (D.S.C.).

I. PROCEDURAL HISTORY

On July 6, 2009, Plaintiff filed applications for disability insurance benefits (DIB) and supplemental security income (SSI) benefits, alleging that he became disabled in April 2008 due to panic attacks. (Tr. 14, 166). Following a hearing, Administrative Law Judge (ALJ) Arthur L. Conover denied Plaintiff's claims on February 17, 2012, finding that he did not meet the strict standard for disability under the Act (Tr. 14-24). The Appeals Council subsequently denied Plaintiff's request for review making the ALJ's decision final for purposes of judicial review. On July 9, 2013, Plaintiff brought this action challenging the Commissioner's decision under 42 U.S.C. § 405(g).

II. INTRODUCTORY FACTS

Plaintiff was born on September 27, 1966. (Tr. 23). His alleged onset date of disability is April 30, 2008, at which time he was 41 years old. Plaintiff has a " limited" education and has past relevant work as an electrician's helper. (Tr. 23).

III. THE ALJ'S DECISION

In the decision of February 17, 2012, the ALJ found the following:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2013.

2. The claimant has not engaged in substantial gainful activity since April 30, 2008, the alleged onset date (20 CFR 404.1571, et seq . and 416.971 et seq. ).

3. The claimant has the following severe impairments: an organic mental disorder, a generalized anxiety disorder, an affective disorder, borderline intellectual functioning, back/neck osteoarthritis, residuals of right rotator cuff tear surgery and a left hip dislocation (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform simple, routine light work, as defined in 20 CFR 404.1567(b) and 416.967(b). The undersigned also determines that the claimant can occasionally push/pull with the left leg, can occasionally climb ramps and stairs, stoop, kneel, and crawl. He cannot climb ladders, ropes, and scaffolds, or reach overhead with his right dominant arm. He needs to avoid exposure to vibrations and to heights and dangerous machinery. He needs to avoid large crowds in the workplace, and he should not wait on the public as customers.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on September 27, 1966 and was 41 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is " not disabled, " whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. 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 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

11. The claimant has not been under a disability, as defined in the Social Security Act, from April 30, 2008, through date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. 14-24).

The Commissioner argues that the ALJ's decision was based on substantial evidence. The phrase " substantial evidence" means " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 390-401, (1971). Under the Social Security Act, 42 U.S.C. § 405 (g), the scope of review of the Commissioner's final decision is limited to: (1) whether the decision of the Commissioner is supported by substantial evidence and

(2) whether the legal conclusions of the Commissioner are correct under controlling law. Myers v. Califano, 611 F.2d 980, 982-83 (4th Cir. 1988); Richardson v. Califano, 574 F.2d 802 (4th Cir. 1978). " Substantial evidence" is that evidence which a " reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390. Such evidence is generally equated with the amount of evidence necessary to avoid a directed verdict. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). The Court's scope of review is specific and narrow. It does not conduct a de novo review of the evidence, and the Commissioner's finding of non-disability is to be upheld, even if the Court disagrees, so long as it is supported by substantial evidence. 42 U.S.C. § 405 (g) (1982); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

The general procedure of a Social Security disability inquiry is well established. Five questions are to be asked sequentially during the course of a disability determination. 20 C.F.R. § § 404.1520, 1520a (1988). An ALJ must consider (1) whether the claimant is engaged in substantial gainful activity, (2) whether the claimant has a severe impairment, (3) whether the claimant has an impairment which equals a condition contained within the Social Security Administration's official listing of impairments (at 20 C.F.R. Pt. 404, Subpart P, App. 1), (4) whether the claimant has an impairment which prevents past relevant work and (5) whether the claimant's impairments prevent him from any substantial gainful employment.

Under 42 U.S.C. § § 423 (d)(1)(A) and 423(d)(5) pursuant to the Regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an " 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 a continuous period of not less than 12 months." See 20 C.F.R. § 404.1505(a); Blalock, 483 F.2d at 775.

If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1503(a). Hall v. Harris, 658 F.2d 260 (4th Cir. 1981). An ALJ's factual determinations must be upheld if supported by substantial evidence and proper legal standards were applied. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986).

A claimant is not disabled within the meaning of the Act if he can return to his past relevant work as it is customarily performed in the economy or as the claimant actually performed the work. SSR 82-62. The claimant bears the burden of establishing his inability to work within the meaning of the Social Security Act. 42 U.S.C. § 423 (d)(5). He must make a prima facie showing of disability by showing he was unable to return to his 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 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 that 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. at 191.

IV. ARGUMENTS

The Plaintiff argues that the ALJ erred in his decision. Specifically, Plaintiff raises the following arguments in his brief, quoted verbatim:

1. Opinion Evidence. The opinions of Dr. Thompson, an examining physician contain work-preclusive limitations which the ALJ improperly ignored. Where the ALJ improperly ignores the opinion evidence, can his decision be supported by substantial evidence;

1.1 Dr. Thompson's total opinions, if acknowledged and accepted, would support a finding of disability

1.2 The ALJ's evaluation of Dr. Thompson's opinions was insufficient to support his decision

1.2.1 The ALJ seemingly accepted Dr. Thompson's opinions but failed to indicate the weight he assigned to them, in violation of well settled law

1.2.2 The ALJ failed to properly acknowledge the totality of Dr. Thompson's opinions, in violation of settled law

2. Residual Functional Capacity. The RFC assessment must be a reasoned assessment of all of the relevant evidence. The ALJ here failed to include all of Dutton's credible limitations and failed [to] provide an adequate discussion to support his finding. Can a decision based upon an incomplete and inaccurate assessment of a claimant's RFC [be] supported by substantial evidence?

2.1 The ALJ failed to perform the ...


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