United States District Court, D. South Carolina, Greenville Division
Russell R. Gibson, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
F. McDONALD, Magistrate Judge.
case is before the court for a report and recommendation
pursuant to Local Civ. 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
plaintiff brought this action pursuant to Sections 205(g) and
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 his
claims for disability insurance benefits and supplemental
security income benefits under Titles II and XVI of the
Social Security Act.
plaintiff filed applications for disability insurance
benefits ("DIB") and supplemental security income
("SSI") benefits on May 24, 2012, alleging that he
became unable to work on March 8, 2012. The applications
were denied initially and on reconsideration by the Social
Security Administration. On February 27, 2013, the plaintiff
requested a hearing. The administrative law judge
("ALJ"), before whom the plaintiff and Pedro M.
Roman, an impartial vocational expert appeared on April 8,
2014, considered the case de novo, and on April 29,
2014, found that the plaintiff was not under a disability as
defined in the Social Security Act, as amended (Tr. 22-38).
plaintiff requested a review of the decision by the Appeals
Council (Tr. 17-18). The Appeals Council granted the request
for review and issued an unfavorable decision on October 23,
2014 (Tr. 1-7), thereby making the Appeals Council's
decision the final decision of the Commissioner of Social
Security. The Appeals Council stated that it had reviewed the
third-party statement of the plaintiff's aunt, Nellie
Lawless, which was not evaluated in the ALJ's hearing
decision. The Appeals Council gave the statement little
weight because it was based on the plaintiff's subjective
complaints and did not indicate the degree to which the
plaintiff's ability to lift, reach, walk, stand, or sit
was limited (Tr. 4-7; see Tr. 331-39). The Appeals
Council adopted the ALJ's findings that the plaintiff was
not disabled (Tr. 6). The plaintiff then filed this action
for judicial review.
making the determination that the plaintiff is not entitled
to benefits, the Commissioner has adopted the following
findings of the Appeals Council:
(1) The claimant has not engaged in substantial gainful
activity since his alleged onset date of March 8, 2012.
(2) The claimant has the following severe impairments: lumbar
degenerative disc disease, bilateral carpal tunnel syndrome,
depression, anxiety and a bipolar disorder, but does not have
an impairment or combination of impairments which is listed
in, or which is medically equal to an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1.
(3) The claimant's combination of impairments results in
the following limitations on his ability to perform
work-related activities: the claimant retains the ability to
perform light work as defined by applicable Social Security
regulations, provided that (1) the claimant needs to
alternate sitting and standing throughout the work day as
defined by the vocational expert (i.e., standing and walking
approximately four to six hours with the ability to have a
stool for sitting from a little to two hours), (2) the
claimant has no ability to climb ladders, ropes or scaffolds,
(3) the claimant has the ability to balance, stoop, kneel,
crouch and crawl occasionally, (4) the claimant is limited to
frequent gross and fine manipulation, (5) the claimant is
limited to simple, routine repetitive tasks with no ongoing
public contact, and (6) the claimant is limited to a low
stress work environment, defined as involving only occasional
changes in the work setting or occasional decision making.
(4) The claimant has not been able to perform any past
relevant work since March 8, 2012.
(5) The limitations on the claimant's ability to perform
workrelated activities set forth in Finding 3 do not preclude
the performance of jobs that exist in significant numbers in
the national economy.
(6) The claimant has not been disabled as defined in the
Social Security Act at any time during the period from March
8, 2012 through the date of the Administrative Law
Judge's decision on April 29, 2014.
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.
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. Â§ 423(a).
"Disability" is defined in 42 U.S.C. Â§ 423(d)(1)(A)
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
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. Â§Â§
404.1520, 416.920. If an individual is found not disabled at
any step, further inquiry is unnecessary. Id. Â§Â§
plaintiff is not disabled within the meaning of the Act if he
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 inability to
work within the meaning of the Act. 42 U.S.C. Â§ 423(d)(5). He
must make a prima facie showing of disability by showing he
is unable to return to his past relevant work. Grant v.
Schweiker, 699 F.2d 189, 191 (4th Cir. 1983).
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 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.
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
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
Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.
1966) (citation omitted).
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).
plaintiff was born on February 11, 1975, and was 37 years old
as of his alleged disability onset date (Tr. 102). He
completed the twelfth grade in 1993 (Tr. 276). He worked as
an auto technician for a few years, but stopped when he
developed carpal tunnel syndrome and underwent surgery in
1999, which gave him some relief (Tr. 427). He worked as a
sheet metal fabricator from 1997 to 2005. This involved
lifting up to 100 pounds occasionally and 50 pounds
frequently (Tr. 342). Also in 2005, he worked in production
as a machine operator, unloading finished product from
machinery, which involved lifting 25 pounds (Tr. 341). In
2006, he was a cloth doffer in a textile mill, which involved
lifting 50 pounds occasionally and 25 pounds frequently (
id. ). From 2007 to 2008, he made concrete forms for
a concrete company; this required lifting 50 pounds
occasionally and 20 pounds frequently (Tr. 342).
April 13, 2011, the plaintiff saw his primary care physician,
Jaymi S. Meyers, M.D., at Keowee Family Medicine. The
plaintiff had mild tenderness in the lumbar region, but no
point tenderness (Tr. 377). Dr. Meyers recommended that the
plaintiff stretch every morning for his lumbago and
encouraged him to lose weight ( id. ). Dr. Meyers
prescribed medication (Clonazepam and Paxil) for anxiety and
insomnia (Tr. 376). The plaintiff reported that he had not
had any more panic attacks since his last visit, that he was
going to court regarding child support and needed a form
filled out, and that he could not find work (Tr. 376-77).
7, 2011, Dr. Meyers noted that the purpose of the
plaintiff's visit was "paperwork" (Tr. 374).
Dr. Meyers prescribed Neurontin for back pain and noted that
the plaintiff's lawyer had advised him to get an MRI of
his entire back, which Dr. Meyers declined to do because the
plaintiff had recently had an MRI of his lumbar spine (Tr.
an appointment on August 2, 2011, Dr. Meyers noted that the
plaintiff had received a summons from family court (Tr. 371).
Dr. Meyers wrote a note for the plaintiff indicating that he
was not currently able to work, had trouble caring for
himself, and was awaiting formal psychiatric evaluation (Tr.
January 18, 2012, Dr. Meyers observed that the plaintiff was
stable on his medication without visible anxiety (Tr. 367).
The plaintiff reported that he was doing "OK" and
tried to spend time with his son, age 12 (Tr. 366). At the
next appointment on April 16, 2012, Dr. Meyers noted that the
plaintiff was "overall still doing really well" and
encouraged him to participate in daily physical activity and
to stop smoking (Tr. 365).
April 2012, the plaintiff was referred to John Martin, M.D.,
at the Pain Management Center at Oconee Medical Center
("OMC") for pain management and physical therapy.
The plaintiff was treated by Dr. Martin until September,
2013. During the plaintiff's initial examination on April
25, 2012, Dr. Martin noted that the plaintiff had a history
of pain issues, with back pain being reported by the
plaintiff as far back at 1993. Dr. Martin noted that a May
19, 2011, MRI showed "mild broad-based central disk
bulging at L4-L5 and L5-S1 levels" and also noted that
the plaintiff has "bilateral prominence for the scapulae
medially." There was no gross neuroforaminal or central
spinal canal stenosis evident on the MRI (Tr. 384). Dr.
Martin found no palpable muscle spasm along the lumbar spine.
The plaintiff said he took a Lortab occasionally that he got
from relatives and no other pain medication. The plaintiff
complained of an aching in his hands and shoulder blades, and
reported that past carpal tunnel surgery several years ago
helped with the tingling in his hands. The plaintiff
maintained that his primary problem over the past years had
been depression and anxiety, that he lost his job because of
marital problems, and had not felt well since his wife left
him ( id. ).
the April 25th examination, Dr. Martin noted exaggerated
moaning and groaning as the plaintiff moved from a standing
position to a seated position to a standing position (Tr.
385). Dr. Martin observed that the plaintiff had an excellent
range of motion of both shoulders with no tenderness to
palpation over the scapulae. His grip strength was
satisfactory; his muscle strength in all major motor groups
was 5/5 bilaterally, and he had full range of motion of his
elbows, wrists, and fingers. Dr. Martin observed no edema or
atrophy in the plaintiff's lower extremities. The
plaintiff was pain-free on internal/external rotation of his
hips, and his test of straight-leg raising was negative for
radicular symptoms. The muscle strength of the major groups
in his legs was 5/5. He had adequate and symmetrical
dorsiflexion strength in both great toes and no sensory
deficits. Dr. Martin prescribed Soma for lumbar muscle spasm
and myofascial pain, and recommended physical therapy. Dr.
Martin diagnosed the plaintiff with lumbago and myofascial
pain as well, and prescribed Mobic 15 mg and Soma 350 mg.
3, 2012, the plaintiff was seen at the
Anderson-Oconee-Pickens Mental Health Center for anxiety,
problems sleeping, and mood swings (Tr. 354-56). He reported
to David Stevenson, M.D., that he was currently divorced,
lived alone, and was seeking treatment and medication for his
symptoms of racing thoughts, mood swings, panic attacks, and
problems sleeping. The plaintiff told Dr. Stevenson that he
had been treated for several years by his primary care
physician with Paxil and Klonopin. Dr. Meyers referred the
plaintiff for a psychological evaluation after the plaintiff,
who was adopted, reported that he had recently met his
biological mother, who told him that she was
"bipolar" ( id. ). He was assigned a
Global Assessment of Functioning ("GAF") score of
50 (Tr. 356).
initial evaluation at the OMC physical therapy department on
May 8, 2012, indicated that the plaintiff demonstrated a
normal speed of gait despite leg length discrepancy and
midline tenderness at the L1-L5 level on palpation (Tr.
441-42). Dorothy Dillon, the plaintiff's physical
therapist, completed a form on June 18, 2012. Ms. Dillon
opined that the plaintiff is only able to sit for 15 minutes
at a time and for three to four hours in a regular eight hour
workday. She opined that he is able to stand/walk for only
ten minutes at a time and two hours during the workday (Tr.
357). Ms. Dillon indicated that the plaintiff could
occasionally lift less than ten pounds, could grasp, turn,
and twist objects 90 percent of the workday with either hand,
and use his fingers for fine manipulation with either hand 90
percent of the workday (Tr. 358). Ms. Dillon indicated that
the plaintiff's grip strength was 70 pounds with his
right hand and 62 pounds with his left hand ( id. )
She estimated that the plaintiff would be absent from work
for treatment or impairment more than four times a month (
27, 2012, Dr. Myers described the plaintiff as alert,
pleasant, and cooperative, with normal cognition (Tr. 363).
plaintiff was discharged from physical therapy on July 6,
2012 (Tr. 432). He showed improvement in trunk forward
flexibility and hamstring flexibility and was encouraged to
continue a home program of exercise independently and to
obtain an addition to the bottom of his shoe to correct a
right leg discrepancy of 1.5 inches ( id. ).
12, 2012, Abdalla M. Bamashmus, M.D., performed a psychiatric
evaluation on the plaintiff at the office of Anderson
Neuropsychiatry Associates (Tr. 391-93). Dr. Bamashmus
observed that the plaintiff was alert and oriented, with an
irritable affect (Tr. 392). Dr. Bamashmus found that the
plaintiff's thought processes were logical and
goal-directed and his memory was mildly impaired (Tr. 391).
The plaintiff's attention and concentration were fair.
Dr. Bamashmus found no psychosis; he tentatively diagnosed
"rule-out bipolar disorder, " "rule-out
borderline personality traits v. disorder, " and
"rule-out intermittent explosive disorder, "
continued the plaintiff's Klonopin and Paxil, and added
Tegretol (Tr. 392). Dr. Bamashmus also noted that the
plaintiff "has anger issues, tendency to get into a
rage... has thoughts of trying to hurt people for the last
five years" (Tr. 391).
followup appointment on July 20, 2012, Dr. Martin found that
the plaintiff's motor and sensory examination was normal.
Dr. Martin noted minimal tenderness to palpation along the
plaintiff's lumbar spine, but that the plaintiff walked
with a normal gait. Dr. Martin refilled the ...