United States District Court, D. South Carolina
REPORT AND RECOMMENDATION OF MAGISTRATE
KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE.
appeal from a denial of social security benefits is before
the court for a Report and Recommendation
(“Report”) pursuant to Local Civil Rule
73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action
pursuant to 42 U.S.C. § 405(g) to obtain judicial review
of the final decision of the Commissioner of Social Security
(“Commissioner”) denying her claim for Disability
Insurance Benefits (“DIB”) pursuant to the Social
Security Act (“the Act”). For the reasons that
follow, the undersigned recommends that the
Commissioner's decision be affirmed.
23, 2012, Plaintiff filed an application for DIB alleging a
disability onset date of January 20, 2011. Tr. 141-42. Her
claim was denied initially, Tr. 62, and upon reconsideration,
Tr. 72, and Plaintiff requested a hearing, Tr. 92-93. On
September 20, 2013, a hearing was held before an
Administrative Law Judge (“ALJ”) and testimony
was taken from Plaintiff, who was represented by counsel, and
a vocational expert (“VE”). Tr. 26-51. On March
14, 2014, the ALJ issued an unfavorable decision finding
Plaintiff was not disabled. Tr. 7-20. Plaintiff requested
review of the decision from the Appeals Council. Tr. 5-6. The
Appeals Council denied review on June 25, 2015, making the
ALJ's decision the Commissioner's final decision for
purposes of judicial review. Tr. 1-3. Plaintiff brought this
action seeking judicial review of the Commissioner's
decision in a Complaint filed August 7, 2015. ECF No. 1.
June 1965, Plaintiff was 45 years old on her alleged onset
date of January 20, 2011. Tr. 177. On her form Disability
Report Plaintiff noted that she completed the 12th grade and
did not attend special education classes. Tr. 182. However,
at the administrative hearing Plaintiff testified that she
was one subject short of completing the 12th grade. Tr. 45.
Plaintiff's past relevant work (“PRW”) was
that of a direct care provider in a mental retardation center
and a certified nursing assistant (“CNA”) in a
nursing home. Tr. 182. Plaintiff listed back
problems and high blood pressure on her Disability Report as
the medical conditions limiting her ability to work. Tr. 181.
September 20, 2013 administrative hearing, in response to
questions from the ALJ Plaintiff testified that her highest
level of education was twelfth grade, she was not currently
taking any classes, she was not working, and she had last
worked in January 2011 at Woodruff Manor nursing home. Tr.
30. Plaintiff clarified that she was asked to return to work
on April 16, 2011; however, Plaintiff indicated that when she
did she had swelling in her feet and was unable to work after
one day. Id. Plaintiff testified that her back was
her most serious problem and she had two back surgeries in
2009 and 2011. Tr. 30-31. Plaintiff testified that after the
first surgery she “did better” but after the
second surgery her leg pain ceased however her “back
pain was worse.” Tr. 31. Plaintiff testified that she
“started having pains radiating down from the hips to
the legs again.” Tr. 31-32. Plaintiff stated that she
had an MRI after the second surgery to “make sure that
everything was in place because [she] was having so much
pain.” Tr. 32. Plaintiff testified that the MRI showed
that “[e]verything was still attached, and [the doctor]
was telling [her] that the lower back pains that [she] was
going to continue to have, and there was nothing else he
could do surgical wise.” Id. Plaintiff stated
that she had no MRIs since the 2011 MRI. Id.
Plaintiff later clarified that she did not have an MRI in
2011, but instead it was an x-ray. Tr. 33. Plaintiff
testified that she has not gone to the emergency room because
of back pain because she does not have insurance and because
she “usually would do like soaking baths” and
“take Tylenol or something like that, to try to get
some kind of relief from it.” Tr. 34. Plaintiff
testified that she had a functional capacity evaluation in
May 2012 for worker's compensation purposes. Id.
Plaintiff stated that worker's compensation insurance
“covered the hospital . . . the surgeon and all [her]
medical bills when [she] went as for to the doctor, and then
the medicine, but the doctor released [her].”
Id. Plaintiff stated there was no ongoing coverage.
testified that she can care for herself, but her daughter
does her hair because her right hand sometimes “locks
down” due to carpal tunnel. Tr. 35. Plaintiff testified
that Dr. Bernard diagnosed her with carpal tunnel a year ago
but because she still had problems she went to Lawrence
Community Care and was provided a brace. Id.
Plaintiff stated her left hand also “was doing
it” but that it was “not like the right
one.” Id. Plaintiff testified that she is
right-handed. Id. Plaintiff stated that she can
still use her hand but she will lose feeling in her hand and
any item she is holding will slip out of her hand. Tr. 36.
Plaintiff stated she is unable to wash dishes because she
gets lower back pains and muscle spasms from standing.
Id. Plaintiff stated she can brush her teeth and
wash her hands standing over the sink but that she sometimes
sits on the toilet lid or she will “tilt” instead
of trying to bend. Tr. 36-37. Plaintiff stated that if she
wants to take a soaking bath she has to have someone help
her. Tr. 37. Plaintiff testified that she can bend over
“a little” but if she bends too far her
“back will go out.” Id. Plaintiff stated
she is unable to pick up something from the ground and will
ask her grandchildren for help. Tr. 37-38. Plaintiff stated
she can “tote a loaf of bread” but would have a
problem with a gallon of milk. Tr. 38. Plaintiff testified
she can stand for about 10-to-15 minutes, but she is
constantly “up and down” even at night.
Id. Plaintiff stated that she does not have a
comfortable position. Id. Plaintiff testified that
she takes “soaking hot baths” to help with her
back pain, and she was given Tramadol but it did nothing to
help. Tr. 39. Plaintiff testified that her doctor
“stated surgically wise, everything that'd been
done that can be done.” Id. Plaintiff
testified that she had a nerve conduction study done before
the second surgery but could not remember if she had one
after the second surgery. Id. Plaintiff's
counsel confirmed that he was not aware of one and that pain
management was through 2009. Id.
testified that she lived with a friend and her son and that
they helped her. Tr. 40. Plaintiff testified that she used to
work as a CNA. Id. Plaintiff testified that she had
swelling in her ankles and feet if she walked or stood.
Id. Plaintiff stated that her doctor thought the
swelling could be from her back problems or arthritis.
Id. Plaintiff testified that she was prescribed a
“water pill” in addition to the one that is in
her blood pressure medication and that it made a little
difference. Tr. 41. Plaintiff stated that she has diabetes
and as a complication of diabetes she has neuropathy.
Id. Plaintiff testified that her doctor is unable to
prescribe her medication for the neuropathy at present
because she needs to complete a different medication so that
it will not affect her blood pressure. Id. Plaintiff
stated that her blood pressure symptoms include headaches,
sometimes nosebleeds, and grogginess. Id.
response to questions from her counsel Plaintiff testified
that she had recently visited [Laurens County] Community Care
Clinic and received prescriptions for Lortab and for the
antibiotic Cephalexin. Tr. 42. Plaintiff testified that she
was prescribed the antibiotic for treatment of what the
doctor thought might be shingles with a bacterial infection.
Id. Plaintiff testified she first had shingles a
year before and it lasted one week but this time it was in
her chest area and had lasted for two weeks. Tr. 43.
Plaintiff testified that before she had problems with her
right hand she was able to dress herself better, wash dishes,
do “a little light housework[, ]” and comb her
hair. Id. Plaintiff testified that the doctor she
was seeing related to her hand left his practice and so she
then switched to the clinic. Tr. 44. Plaintiff testified that
she also has “real bad sinus” and the medicine
she has been prescribed “dries [her] out so, [she] have
headaches all day” for which she takes Tylenol.
testified that she is five feet nine inches tall and weighed
248 pounds. Tr. 45. Plaintiff stated that plus or minus two
or three pounds that has been her typical adult weight.
Id. Plaintiff said she has been talked to about
losing weight but has not had any success. Id. When
asked if she had completed high school Plaintiff testified
that she “went through the twelfth grade [and] only had
one subject of getting a high school diploma.”
follow-up the ALJ asked Plaintiff when her right hand started
bothering her and Plaintiff responded that it had been over a
year. Tr. 45. Although Plaintiff testified that she had been
to the doctor more than once in the last eight or nine months
the ALJ noted that he had no records from that period and had
no records after November 2012. Tr. 46. Plaintiff indicated
she was seeing Dr. Bernard and he closed his practice in
July; her last visit to him would have been in April 2013.
Id. The ALJ indicated he would leave the record open
so that Plaintiff could provide information from Dr. Bernard
and while waiting on the records Plaintiff should undergo a
physical consultative exam to check her grip strength.
Id. The ALJ asked Plaintiff what parts of her body
had arthritis and Plaintiff indicated she had arthritis in
her arms, shoulders, lower back, and legs “down by the
knees.” Tr. 47-48.
qualifying VE Adger Brown as an expert, the ALJ asked him if
Plaintiff had any sedentary work and the VE responded in the
negative. Tr. 48. The ALJ posed a hypothetical to the VE,
asking him to “assume an individual of the
claimant's same age, education, and work experience
limited to sedentary exertional work, occasional posturals
such as climbing ramps or stairs, balancing, stooping,
kneeling, crouching, or crawling, should avoid exposure to
excessive vibration, respiratory irritants, hazards and
unprotected heights.” Id. After clarifying
that the work would be limited to sedentary and unskilled the
VE identified the following available jobs: assemblers, 1,
600 in South Carolina, 106, 000 in the U.S., representative
Dictionary of Occupational Titles (“DOT”) number
732.587-10; quality control examiners, 450 in South Carolina,
14, 000 in the U.S., DOT number 739.687-182; hand packers,
250 in South Carolina, 14, 000 in the U.S., and
representative DOT number 920.687-030. Tr. 49. The ALJ asked
if it would be acceptable for those jobs if the individual
had to sit and stand about every 30 minutes. Id. The
VE responded that the individual “could probably do
some of those jobs, but . . . the numbers would be reduced by
about 50 percent across the board.” Id. The VE
also testified that the job base would not be dramatically
eroded if the individual “could frequently, but not
constantly hand, finger and feel with the dominant
hand[.]” Id. The VE stated that if it was
limited to occasionally “that would eliminate work at
the sedentary level.” Id.
asked the VE to “assume the same limitations as in
hypothetical number three, but assume the individual would be
off task about 20 percent of the time for a combination of
reasons.” Tr. 49. The VE responded that if a person
were off task that much on a consistent basis he did not
believe there would be any jobs the person could perform. Tr.
reiterated that he was going to order a consultative exam for
Plaintiff. Id. Plaintiff's counsel had no
questions for the VE, but noted that he planned to obtain
another MRI, Dr. Bernard's records after November 2012,
and any records from the clinic where Plaintiff was being
seen currently. Id.
March 14, 2014 decision, the ALJ made the following findings
of fact and conclusions of law:
1. The claimant meets the insured status requirements of the
Social Security Act through March 31, 2015.
2. The claimant has not engaged in substantial gainful
activity since January 20, 2011, the alleged onset date (20
CFR 404.1571 et seq.).
3. The claimant has the following severe impairments:
degenerative disc disease of the lumbar spine, status post
lumbar fusion at the L5-S1 level in 2009, status post lumbar
fusion at ¶ 4-5 level in 2011, obesity, and carpal
tunnel syndrome (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, I find
that the claimant has the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a)
except for work requiring climbing ladders, ropes, or
scaffolds; concentrated exposure to respiratory irritants,
vibration, heights, or hazards; more than occasional
balancing, stooping, kneeling, crouching, crawling, or
climbing stairs or ramps; or more than frequent handling or
6. The claimant is unable to perform any past relevant work
(20 CFR 404.1565).
7. The claimant was born on June 4, 1965 and was 45 years
old, which is defined as a younger individual age 45-49, on
the alleged disability onset date (20 CFR. 404.1563).
8. The claimant has at least a high school education and is
able to communicate in ...