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McCormick v. Colvin

United States District Court, D. South Carolina

February 11, 2016

Wanda Teresa McCormick, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.



This social security matter is before the court pursuant to 28 U.S.C. § 636(c) and Local Civil Rule 83.VII.02 (D.S.C.) for final adjudication, with the consent of the parties, of Plaintiff’s petition for judicial review. Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision the Commissioner of Social Security (“Commissioner”), denying her claim for Supplemental Security Income (“SSI”) pursuant to the Social Security Act (“the Act”). Having carefully considered the parties’ submissions and the applicable law, the court affirms the Commissioner’s decision, as discussed herein.

I. Relevant Background

A. Procedural History

Plaintiff protectively applied for SSI benefits on August 25, 2011, alleging a disability-onset date of July 1, 2001.[1] Tr. 210-15. Plaintiff’s claims were denied initially, Tr.121, 157-61, and on reconsideration, Tr. 137. Plaintiff requested a hearing before an administrative law judge (“ALJ”), Tr. 169-71, and a hearing was held on August 1, 2013, Tr. 29-70. In a decision dated September 27, 2013, the ALJ determined that Plaintiff was not disabled within the meaning of the Act. Tr. 9-23. On December 3, 2014, the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision. Tr. 1-5. On December 12, 2014, Plaintiff brought this action seeking judicial review of the Commissioner’s decision. ECF No. 1.

B. Plaintiff’s Background

Plaintiff was born in July 1964, and was 47 years old on August 25, 2011, her protected filing date. See Tr. 284. The Disability Report - Field Office Form SSA-3367 indicates a disability onset date of July 1, 2002, which is one year later than the date on her SSI application. Compare Tr. 284 with Tr. 210. In her Disability Report - Adult Form SSA 3368, Plaintiff indicated she completed the 12th grade and did not attend special education classes. Tr. 290. However, at her administrative hearing Plaintiff testified that she completed only the ninth grade. Tr. 36. The Disability Report also indicates Plaintiff stopped working on July 1, 2002, due to her conditions of depression, borderline mental retardation, and heart problems. Tr. 289. In her Function Report-Adult completed October 11, 2011, Plaintiff indicated her back, legs, and arms hurt. See Tr. 296.

C. Relevant Medical History

a. Dr. Kathleen Lundvall

On November 3, 2011, Dr. Lundvall completed a Psychiatric Review Technique form (“PRTF”) assessing Plaintiff’s mental health. Tr. 504-15. Dr. Lundvall noted that Plaintiff met Listings 12.04 Affective Disorders and 12.06 Anxiety-Related Disorders. Tr. 504. Under the category of affective disorders Dr. Lundvall checked boxes indicating Plaintiff had depressive syndrome characterized by the following: anhedonia or pervasive loss of interest in almost all activities, sleep disturbance, decreased energy, and difficulty concentrating or thinking. Tr. 507. Under the category of anxiety-related disorders she checked boxes indicating generalized persistent anxiety accompanied by motor tension, autonomic hyperactivity, and apprehensive expectation. Tr. 509. Dr. Lundvall rated Plaintiff’s functional limitations under the “B” criteria of the listings. Tr. 514. She determined Plaintiff had “marked” limitations in all areas which include restriction of activities of daily living; difficulties in maintaining social functioning; difficulties in maintaining concentration, persistence, or pace; and she noted Plaintiff had three episodes decompensation of extended duration. Id. On October 31, 2012, Dr. Lundvall responded “yes” to a questionnaire asking if the November 2011 PRTF was still her opinion. Tr. 516.

b. Dr. Gariane Gunter

On February 26, 2013, Dr. Gunter completed a PRTF noting that Plaintiff met Listings 12.04 and 12.06. Under Listing 12.04 affective disorders, Dr. Gunter found that Plaintiff had the medically determinable impairment of depressive disorder NOS [not otherwise specified] that did not precisely satisfy the diagnostic criteria of the listing. Tr. 521. Under Listing 12.06 anxiety-related disorders, Dr. Gunter determined Plaintiff had anxiety disorder NOS, which was a medically determinable impairment that did not precisely satisfy the diagnostic criteria of the listing. Tr. 523. She noted that the symptoms and signs that substantiated the presence of the impairment included: “Recurrent & persistent anxiety that includes autonomic hyperactivity & apprehensive expectation.” Id. Under the “B” criteria of the listings Dr. Gunter opined that Plaintiff had “moderate” limitations in restriction of activities of daily living and “marked” limitations in the areas of difficulties in maintaining social functioning and difficulties in maintaining concentration, persistence, or pace. Tr. 525. She noted Plaintiff had three episodes of decompensation of extended duration. Id. Under the “C” criteria of the listings Dr. Gunter indicated that Plaintiff had the following:

[A] medically documented history of a chronic organic mental . . . disorder of at least 2 years’ duration that has caused more than a minimal limitation of ability to do any basic work activity, with symptoms or signs currently attenuated by medication or psychological support, and . . . [a] residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate.

Tr. 526.

D. The Administrative Proceedings

Plaintiff appeared, along with her counsel, at the August 1, 2013 administrative hearing held in Columbia, SC before ALJ Frances W. Williams. Tr. 29. At the hearing Plaintiff amended her onset date to her protected filing date of August 25, 2011. Tr. 32-33. Vocational Expert (“VE”) Thomas D. Neal was also present and testified at the hearing. Tr. 29.

1. Plaintiff’s testimony

On the day of the hearing Plaintiff testified that she was 49 years old, 5 feet 7 inches tall, weighed 305 pounds, and lived in a trailer with her son, daughter, and two grandchildren ages seven months and six years old. Tr. 34. Plaintiff stated that the trailer had two sets of stairs, one with three steps and one with six steps and that it hurt her back and legs to use the stairs. Tr. 35. Plaintiff stated that she had an unrestricted driver’s license and had no problems driving other than driving on the interstate because she did not “know how to get off and on too good.” Tr. 35-36. Plaintiff testified that the highest grade she completed was the ninth grade, she was in adult education for a while, but did not obtain her GED because she could not pass the test. Tr. 36. Plaintiff testified that she did not receive Medicaid, did not have health insurance, and had not worked since 2001. Tr. 36-37. Plaintiff stated that she stopped working because she had “a bad car wreck and it messed [her] back and [her] neck up.” Tr. 37. Plaintiff stated that she had not received unemployment benefits in the last several years and had not tried to find work. Id. Plaintiff testified that she went to vocational rehabilitation one time and was told that she would not be allowed to work due to her conditions of “enlarged heart and [her] back and [her] legs, the way they are.” Id. Plaintiff identified past work she had done in the late 1990s working part-time at a chicken farm and poultry plant. Tr. 38-40. Plaintiff testified that in 1998 she worked fulltime at Wal-Mart for about six months, first as a cashier and then she was transferred to “‘soft lines’ where you hang up clothes and stuff.” Tr. 41. She also worked part-time for short periods for the South Carolina Highway Department and for a limousine company. Tr. 41-42. The ALJ determined that the only past relevant work would have been Plaintiff’s employment with Wal-Mart. Tr. 42-43.

In response to questions from her attorney Plaintiff testified that about ten years prior she had been psychiatrically committed to Lexington hospital.[2] Tr. 43. She also testified that at some point-she thought perhaps in 1999-she had counseling sessions at Newberry Mental Health. Tr. 44-45. Plaintiff testified that over the past four or five years she was receiving counseling at Lexington County Mental Health Center. Tr. 45. She was seen initially by Dr. Lundvall[3] and after Dr. Lundvall left the Center Plaintiff was assigned to Dr. Gunter. Tr. 45-46. Plaintiff stated that she has seen several counselors over the last two years as the counselors keep changing. Tr. 46. When asked to describe her symptoms Plaintiff stated that she “can’t remember a lot and [her] nerves bother [her].” Id. Plaintiff stated that she has problems dealing with people and “likes to stay to [herself]” because of her nerves. Tr. 47. Plaintiff testified that she started feeling that way in 2000 when she was unable to obtain custody of her grandchildren. Id. Plaintiff testified that she is “tired all the time.” Tr. 48. She also described an inability to keep track of small items about a half-inch in size because it is “blurry and stuff.” Tr. 48-49. Plaintiff stated she could not relax much because of her back and legs hurting but she could not say if was due to pain or to a mental condition. Tr. 49. Plaintiff stated she did household chores “a little at a time” because of her back and legs. Id. She also stated that she has problems concentrating and “can’t stay on one skill.” Tr. 50. Plaintiff testified that she gets along with people and likes being with people but does not like being in a crowd. Id. Plaintiff testified that she has a fear of being raped and for years has had dreams of that fear. Tr. 50-51.

Plaintiff testified that she went to night school because she wanted to find a better job. Tr. 51. She also stated that she has trouble reading and sometimes is unable to understand the words she reads. Id. Plaintiff testified that she also has trouble with spelling. Tr. 52. Plaintiff testified that her back pain is “all the way up [her] spine, but it’s mostly in the lower part of [her] back.” Id. Plaintiff stated that the back pain started with a car accident. Tr. 53. She testified that she can walk or stand for about 10 to 20 minutes. Id. Plaintiff testified that she has swelling in her knees, legs, feet, and hands. Id. Plaintiff testified that she has problems lifting and can lift three-to-ten pounds. Tr. 54. She stated that she has muscle cramps in her legs and has pain “[j]ust about all the time.” Id. Plaintiff stated she takes Altram, Neurontin, and Celebrex for the pain but she told doctors she could not take codeine and morphine.[4] Tr. 55.

In response to questions from the ALJ Plaintiff stated that she takes 600 milligrams of Neurontin three times a day and she takes the Altram three times a day. Tr. 55. Plaintiff testified that the side effect of the medication is weight gain, but that the medications help. Tr. 56. Plaintiff stated that doctors had not done any specific treatment for her back and legs other than prescribe medicine. Id. Plaintiff testified that doctors were going to send her for an MRI of her back but because she did not have $100.00 they would not take her. Id. Plaintiff stated that doctors have not recommended any kind of physical therapy. Id. Plaintiff testified that she saw Dr. Lundvall and now Dr. Gunter about every three months and sees counselors every two-to-three weeks. Tr. 57. Plaintiff testified that her mental health was better but she could not tell when it started getting better. Id. The ALJ noted that in October 2011 Plaintiff stated that she cooked, washed dishes, cleaned, dusted, let the dogs out, and watched her four-year-old grandchild. Id. Plaintiff confirmed that was fairly representative of her activities and they were the same at present. Tr. 58. Plaintiff testified she was unable to care for her younger grandchild because she took too much medicine and now the older grandchild also went to a babysitter. Id. Plaintiff stated that she did not smoke and had stopped drinking alcohol a “couple of years ago.” Id. Plaintiff stated that at one time she had a problem with alcohol but was able to stop on her own. Tr. 58-59. When asked if there was anything else she wanted to tell the ALJ, Plaintiff stated: “Nothing except that I hurt all over and my back and legs bothers me real bad, and my nerves.” Tr. 59. In response to follow-up questions from her attorney Plaintiff testified that she is unable to cook, wash dishes, and clean for eight hours a day on a schedule and has to do it at her own pace. Id.

2. The VE’s testimony

VE Neal described Plaintiff’s past work at Wal-Mart as cashier, Dictionary of Occupational Titles [“DOT”] number 211.462-010, light exertional level, SVP of 2, unskilled; and as sales attendant, DOT number 299.677-010, light exertional level, SVP of 2, and unskilled. Tr. 60.

The ALJ asked the VE to consider a person who could lift and carry 20 pounds occasionally and 10 pounds frequently; “[w]ho should not be required to climb ladders, ropes, scaffolds, and other postural restrictions with no more than occasional stooping. . . . Occasional stooping, crouching, kneeling, balancing, crawling, or climbing stairs and ramps, and who would also be limited to unskilled work with no more than occasional direct interaction with the public, no more than occasional team-type interactional with co-workers. Additionally, should not be required to make complex detailed decisions, should not be required to adapt to greater than simple gradual changes in the workplace, should work in an environment where a supervisor is in the vicinity, not necessarily in the same room, but close by in the vicinity of the work area, and would require no reading at greater than a fifth grade level.” Tr. 60-61. The VE testified that based on those limitations none of Plaintiff’s past work would be applicable. Tr. 62. The VE identified a “reduced range of light unskilled work” that would be available. Id. Examples included: cleaner, DOT number 323.687-014, light, SVP of 2, unskilled, approximately 1, 000 in South Carolina, 180, 000 in the national economy; laundry garment bagger, DOT number 920.687-018, light, SVP of 1, lowest level of unskilled, 750 in South Carolina, 27, 000 in the national economy; hand folder, DOT number 589.687-014, light, SVP of 2, unskilled, 550 in South Carolina, 55, 000 in the national economy. Tr. 62-63.

The ALJ asked the VE to “assume all of those same abilities and limitations, but . . . add that the individual should not have concentrated exposure to extremes of temperatures or humidity . . . . And instead of occasional interaction with the public and team-type with co-workers . . . consider no interaction with the public and no team-type interaction with co-workers.” Tr. 63. The VE testified that the “no contact with customers” limitation would not preclude the work he identified, but the “no team work, even on an occasional basis” would preclude all work. Tr. 63-64.

Plaintiff’s counsel asked the VE if the three occupations he identified required a normal attention span. Tr. 64. The VE responded that “[i]f by ‘normal’ you mean that the individual is able to have attention and concentration for a two-hour period of time, yes, that’s required.” Id. Citing to a psychologist’s report from 2003, [5] Plaintiff’s counsel asked if an individual “in the bottom five percent of the United States in the ability to employ visual images and thinking and to process visual material efficiently” would be able to perform the jobs cited by the VE. Tr. 67-68. The VE stated that he would have to ask the psychologist what was meant by processing visual or written images, but the VE opined that an individual in the fifth percentile would not be able to interact, interpret signage, read, or make judgments “so under those circumstances, obviously, they couldn’t do any work.” Tr. 68. The VE agreed with counsel that “an individual who does not have the ability to complete a normal workday and work week without interruptions from psychologically based symptoms and is not able to perform at a consistent pace without an unreasonable number in length of rest period, could not perform these occupations[.]” Tr. 68-69. Counsel asked if “any impairment in the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances would preclude work in the three occupations[.]” Tr. 69. The VE responded that “if they can’t perform a task for any given period of time, they obviously could not do any type of work.” Id. Counsel asked the VE if he were to “combine the perceptual and motor limitations with a full scale IQ that is in the borderline range, would that further limit the individual’s ability to perform the occupations” and the VE responded: “No, because they’re unskilled.” Tr. 70.

II. Discussion

A. The ALJ’s Findings

In her September 27, 2013, decision, the ALJ made the following findings of fact and conclusions of law:

1. The claimant has not engaged in substantial gainful activity since August 25, 2011, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: mild osteophyte encroachment at C5/6, borderline intellectual disability, depressive disorder, anxiety disorder, and obesity (20 CFR 416.920(c)).
3. 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 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform unskilled, light work as defined in 20 CFR 416. 967(b) except no lifting and/or carrying over 20 pounds occasionally and 10 pounds frequently; no climbing of ladders, ropes, or scaffolds; no more than occasional stooping, crouching, kneeling, balancing, crawling or climbing of stairs or ramps; with no more than occasional direct interaction with the public or “team-type” interaction with co-workers; no complex, detailed decisions; no requirement to adapt to more than simple, gradual changes in the work place; a supervisor in the vicinity; and no reading at greater than a 5th grade level.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on July 10, 1964 and was 47 years old, which is defined as a younger individual age 18-49, on the date the ...

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