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Cummings v. Colvin

United States District Court, D. South Carolina

March 8, 2016

JEREMY DON CUMMINGS, 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 he 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 July 11, 2011, and Supplemental Security Income ("SSI")[1] on July 18, 2011 (protective filing dates), alleging disability beginning May 1, 2007, due to a low back injury requiring surgery, right hip pain, right leg pain/numbness, reading/writing ability at approximately the fourth grade level, and limited comprehension skills. (R.pp. 9, 205, 214, 228). Plaintiff's claims were denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"), which was held on August 8, 2013. (R.pp. 21-54). The ALJ thereafter denied Plaintiff's claims in a decision issued October 1, 2013. (R.pp. 9-20). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-3).

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 and remanded for further consideration, or for an outright award of benefits. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.

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]. [emphasisi 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-two years old when he alleges he became disabled, has a limited education and past relevant work experience as a roofer, labor construction/roofer helper, car body fabricator, and boat repairer. (R.pp. 18, 205, 214, 247). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his 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" impairments[2] of degenerative disc disease of the lumbar spine with mild facet arthritis; status post laminectomy in 2003 for an annular tear with impingement; some persistent right lower extremity symptoms; borderline intellectual functioning; and a learning disorder (R.p. 11), he nevertheless retained the residual functional capacity ("RFC") for a reduced range of light work, [3] with restrictions of no climbing of ladders, ropes, or scaffolds; no crawling; no more than occasional stooping, crouching, kneeling, balancing, or climbing of stairs or ramps; no more than occasional use of right lower extremity controls; only unskilled work; no complex reading at higher than a fourth grade level; no more than occasional contact with the public; and no more than occasional team-type interaction with co-workers. (R.p. 14). At step four, the ALJ found that these limitations rendered Plaintiff unable to perform any of his past relevant work. However, she then 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 disabled during the period at issue. (R.pp. 18-19).

Plaintiff asserts that in reaching this decision, the ALJ erred because she failed to consider Plaintiff's combination of impairments, performed a flawed Listing[4] analysis (in finding that Plaintiff failed to meet Listings 12.02 and 12.05), and performed a flawed RFC analysis. After careful review of the record and consideration of the arguments presented, the undersigned is constrained to agree with the Plaintiff that this case should be reversed and remanded because the ALJ erred in conducting her Listing analysis.

Medical and School Records

In 1989, when Plaintiff was in eighth grade, Mary Louise Payton, a School Psychologist with the Special Needs Services at Falmouth (Massachusetts) Public Schools, noted that Plaintiff had a full scale IQ score of 78, which appears to be from the WAIS-R (R.p. 308). She evaluated Plaintiff as functioning at a low average classification and requiring a "substantially separate program to deal with his needs." (R.p. 310). Plaintiff reportedly collected SSI payments for a number of years (at least from age eighteen to twenty-two and perhaps longer), and then went to work at age twenty-four. (R.p. 34).

Plaintiff was reportedly treated by Drs. Nichols and Hassler in Hartsville, South Carolina as well as by Pee Dee Orthopedics related to injuries he suffered to his lower back while working as a roofer. On July 2, 2003, he underwent back surgery at L4-5, although there are no surgical records on file. (See R.p. 394).

On April 11, 2007, Plaintiff was treated by Dr. Charles Davis at the Carolina Pines Regional Medical Center for low back and right leg pain. An MRI revealed evidence of a prior right laminectomy at L4-5; a mild decreased signal in the L4-5 and L5-S1 interspace at T2, representing disc dessication; and an abnormal signal of the annulus posteriorly at the L4-L5 level, suggesting an annular tear. There was no evidence to suggest focal herniation, nucleus pulposus, spinal stenosis, or lateral recess compromise. (R.p. 349).

In November 2007, Plaintiff underwent psychological testing with Dr. J. Theodore Brown, Jr., a psychologist, at the request of the Agency. Testing revealed a full range IQ score of 65, which was considered to be within the deficient range, and it was noted that although Plaintiff could dress, bathe, and groom himself, he did not have a driver's license and could not physically exert himself because of chronic back pain. Dr. Brown's impression was that Plaintiff was impaired by an otherwise unspecified learning disorder, mild mental retardation, and chronic back pain. Prognosis for improvement was thought to be dependent on Plaintiff being able to find some relief for his physical pain sufficient to allow him to perform useful activity independent of his limited intellectual ability. Dr. Brown further opined that Plaintiff should not, given his limited intellectual ability, be allowed to manage his own funds. (R.pp. 359-362).

On June 19, 2009, an MRI of Plaintiff's lumbar spine revealed degenerative disc disease at L4-5 and 5-S1, mild osteoarthritis, and likely muscle spasm. (R.p. 368). In June, August, and October 2009, Plaintiff was treated and prescribed pain medications (including narcotic pain medication) by Dr. Emmanuel Quaye of The Medical Group in Hartsville, South Carolina for Plaintiff's chronic lower back pain. (R.pp. 364-367). Plaintiff was also treated at Caresouth Carolina on ...


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