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Anderson v. Colvin

United States District Court, D. South Carolina

November 16, 2016

Debbie Ann Anderson, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          KAYMANI D. WEST UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. Relevant Background

         A. Procedural History

         On May 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.

         B. Plaintiff's Background

         Born in 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.

         C. Administrative Proceedings

         1. Plaintiff's Testimony

         At the 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. Tr. 35.

         Plaintiff 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[1] 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.

         Plaintiff 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.

         In 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. Id.

         Plaintiff 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.” Id.

         In 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.

         2. VE's Testimony

         After 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.

         The ALJ 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. 50.

         The ALJ 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.

         I. Discussion

         A. The Commissioner's Findings

         In his 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 fingering.
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 ...

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