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Gibson v. Colvin

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

January 28, 2016

Russell R. Gibson, Plaintiff,
v.
Carolyn W. Colvin, Acting 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 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 636(b)(1)(B).[1]

         The 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.

         ADMINISTRATIVE PROCEEDINGS

         The 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.[2] 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).

         The 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.

         In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the Appeals Council[3]:

(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.

(Tr. 6).

         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.

         APPLICABLE LAW

         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, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).

         A 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. § 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).

         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 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).

         EVIDENCE PRESENTED

         The 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).

          Medical Evidence

         On 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).

         On June 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. 374-75).

         During 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. 373).

         On 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).

         Also in 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. ).

         During 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. (Tr. 384-85).

         On May 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).[4]

         An 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 ( id. ).

         On June 27, 2012, Dr. Myers described the plaintiff as alert, pleasant, and cooperative, with normal cognition (Tr. 363).

         The 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. ).

         On July 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).

         In a 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 ...


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