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McKenzie v. Colvin

United States District Court, D. South Carolina

January 4, 2016

CONNIE MICHELLE McKENZIE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

BRISTOW MARCHANT, Magistrate Judge.

The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.).

Plaintiff applied for Disability Insurance Benefits (DIB) on June 9, 2010, alleging disability beginning June 30, 2005, [1] because of an impairment to her back. (R.pp. 230, 271). Plaintiff's claim was denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held August 16, 2012. (R.pp. 36-65). On August 31, 2012, the ALJ issued a partially favorable decision awarding a closed period of benefits from March 14, 2008 through January 5, 2011, but finding that Plaintiff's condition medically improved as of January 6, 2011, and that she was therefore no longer entitled to benefits after that date. (R.pp. 88-100).

On January 31, 2014, the Appeals Council affirmed the ALJ's decision as to the closed period, but remanded the matter to the ALJ to issue a new decision as to the period beginning January 6, 2011, with instructions to further consider Plaintiff's treating physician's opinions and Plaintiff's use of a cane to ambulate. (R.pp. 107-111). A second hearing before the ALJ was thereafter held on May 15, 2014; (R.pp. 66-81); following which the ALJ issued a decision again finding that Plaintiff was not disabled during the relevant time period of January 6, 2011 through June 2, 2014. (R.pp. 19-30). This time, the Appeals Council denied review of the decision, thereby making the decision of the ALJ the final decision of the Commissioner.

Plaintiff then filed this action in United States District Court. Plaintiff asserts that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed. The Commissioner contends that the decision should be upheld because Plaintiff was properly found to no longer be disabled as of January 6, 2011, and that the decision to deny benefits after that time is supported by substantial evidence in the case record.

Scope of review

Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been 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 refusal to direct a verdict were the case before a jury, then there is "substantial evidence." [emphasis added].

Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also, Hepp v. Astrue, 511 F.3d 798, 806 (8th cir. 2008)[Noting that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].

The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence.'" Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

Discussion

A review of the record shows that Plaintiff, who was thirty-nine years old on January 6, 2011, has at least a high school education and past relevant work experience as a bartender, a data entry clerk, an office manager, a waitress, a telephone support technician, and a district manager. (R.pp. 29, 43, 272, 280). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve (12) months. After a review of the evidence and testimony in the case, the ALJ determined that, although Plaintiff does suffer from the "severe" impairment[2] of status post anterior lumbar fusion at L5-S1 (R.p. 22), that by January 6, 2011 her condition had improved such that she had the residual functional capacity (RFC) to perform sedentary work[3] with the ability to sit for six hours in an eight hour work-day, and stand and walk occasionally, with the further limitation of performing postural activities only occasionally; never climbing, crawling, or kneeling; and avoiding all work hazards and vibrations. The ALJ further determined that Plaintiff would also need to be able to change positions (sit/stand) every 45 to 60 minutes; use an assistive device for walking more than ten feet; and be required to perform only simple, routine, repetitive tasks. (R.p. 24). At step four, the ALJ found that these limitations would preclude Plaintiff from performing any of her past relevant work. (R.p. 29). However, the ALJ obtained testimony from a vocational expert (VE) and found at step five that Plaintiff could perform other jobs existing in significant numbers in the national economy with these limitations, and was therefore not entitled to disability benefits during the period at issue. (R.pp. 29-30).

Plaintiff asserts that in reaching this decision the ALJ erred in failing to give controlling weight to the opinion of her treating physician, Dr. Steven Poletti (an orthopedic surgeon);[4] in finding that she was no longer disabled as of January 6, 2011 because the record reflects no significant change or improvement in Plaintiff's condition as of that date; and in finding her testimony less than credible. After careful review and consideration of the arguments presented, for the reasons set forth hereinbelow the undersigned is constrained to agree with the Plaintiff that the ALJ did not properly analyze and explain his decision that Plaintiff experienced medical improvement as of January 6, 2011, such that she was no longer disabled, thereby requiring reversal of the decision with remand.

First, although not addressed by the parties, the undersigned is constrained to note that the ALJ did not use the proper analytical framework in reaching his decision. The Social Security Act normally provides for a five-step sequential process to determine if a claimant has a disability: 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 an impairment contained in the Listings of Impairments; 4) whether the impairment prevents the claimant from performing his or her past relevant work; and 5) whether the impairment prevents the claimant from doing any substantial gainful employment. 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, then she is not entitled to disability benefits. 20 C.F.R. § 404.1520(4). However, when determining whether a claimant who has previously been found to be disabled continues to be disabled under applicable regulations, as is the case here, the ALJ is required to apply an eight-step sequential evaluation process. See 20 C.F.R. § 404.1594. The eight-step process provides: (1) if the claimant is currently engaging in substantial gainful activity, disability ends; (2) if the claimant has an impairment or combination of impairments that meets or medically equals a listing, disability continues; (3) if the claimant does not meet or equal a listing, the ALJ will determine whether "medical improvement" has occurred; (4) if medical improvement has occurred, the ALJ will determine whether the improvement is related to the claimant's ability to work; (5) if there is no medical improvement - or the medical improvement is found to be unrelated to the claimant's ability to work - disability continues; (6) if there has been medical improvement related to the claimant's ability to work, the ALJ will determine whether all of the current impairments, in combination, are "severe, " and if not, ...


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