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Harris v. Colvin

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

December 7, 2016

Crystal D. Harris, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald United States Magistrate Judge

         This case is before the court for a report and recommendation pursuant to Local Civil 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 her 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 September 21, 2011, and December 29, 2011, respectively, alleging she became unable to work on November 1, 2009. Both claims were denied initially and on reconsideration by the Social Security Administration. On August 31, 2012, the plaintiff requested a hearing. The ALJ held a hearing on April 29, 2014, with the plaintiff, her attorney, and Pedro Roman, an impartial vocational expert, appearing. After the hearing, the claimant submitted additional medical evidence (Tr. 557-59). Based on the new evidence, the claimant's representative was contacted and offered a favorable decision as of December 1, 2013, or a supplemental hearing would be necessary. The claimant's representative declined the offer, and a supplemental hearing was scheduled to determine the functional limitations based on a new diagnosis of carpal tunnel syndrome (Tr. 13). Subsequently, the plaintiff submitted the results of a nerve conduction study (Tr. 560-63). The supplemental hearing was held on August 25, 2014, at which the plaintiff, her attorney, and Allan S. Billehaus, an impartial vocational expert, appeared. The ALJ considered the case de novo and on September 25, 2014, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended. The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on October 30, 2015. 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 ALJ:

(1) The claimant meets the insured status requirements of the Social Security Act through March 31, 2013.
(2) The claimant has not engaged in substantial gainful activity since November 1, 2009, the alleged onset date (20 C.F.R §§ 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: degenerative disc disease, lumbar and cervical spine; headaches; carpel tunnel syndrome (20 C.F.R. §§ 404.1520(c) and 416.920(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 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). I specifically find the claimant can lift or carry 20 pounds occasionally and 10 pounds frequently, and she can stand or walk, each, for 2 out of 8 hours in a workday and sit for 6 out of 8 hours. She needs a sit/stand option and can walk, sit, and stand for 30-minute increments. The sit/stand option would not interfere with attending at the workstation. I also find that she can only occasionally push or pull in her lower extremities. She can never climb ropes, stoop, or be around hazards. She can occasionally climb, balance, kneel, and crouch, and crawl, but she can frequently reach overhead, and frequently handle and finger. In addition, she should avoid concentrated exposure to temperature extremes.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. §§ 404.1565 and 416.965).
(7) The claimant was born on April 13, 1967, and was 42 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 C.F.R. §§ 404.1563 and 416.963).
(8) The claimant has a limited education and is able to communicate in English (20 C.F.R. §§ 404.1564 and 416.964).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (see SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 404.1569, 404.1569(a), 416.969 and 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from November 1, 2009, through the date of this decision (20 C.F.R. §§ 404.1520(g) and 416.920(g)).

         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 42 years old on her alleged disability onset date (November 1, 2009) and was 47 years old on the date of the ALJ's decision (September 25, 2014). She has a tenth grade education (Tr. 13) and past relevant work experience as a cook and food service manager (Tr. 28).

         William Hunter, M.D., of the Carolinas Neuroscience & Spine Center, ordered an MRI that was performed on February 3, 2010, which showed a disc herniation in the plaintiff's lower lumbar spine at ¶ 5-S1 and a small focus of increased T2-weighted signal within the cortex of the right kidney, most likely representing a cyst (Tr. 411). On March 17, 2010, Dr. Hunter evaluated the plaintiff for a long history of posterior cervical and lumbar pain. The plaintiff reported continued lower back pain with bilateral leg pain. Prior chiropractic treatment had been helping, but she developed persistent pain issues. Dr. Hunter noted that the plaintiff had undergone a trial of injections without significant benefit. Dr. Hunter noted a history of hypothyroidism and mental illness, and he reviewed the plaintiff's recent MRI. Dr. Hunter found the plaintiff to be mildly tender over her cervical midline, paracervical region, and trapezius muscles. The plaintiff was tender over her lumbar midline, bilateral sacroiliac joints, and sciatic notches. Dr. Hunter recommended a trial of physical therapy and started the plaintiff on a mild analgesic, muscle relaxant, and anti-inflammatory (Tr. 412-13).

         On March 23, 2010, and April 5, 2010, the plaintiff underwent lumbar translaminar epidural steroid injections (Tr. 414, 415).

         On May 5, 2010, Dr. Hunter evaluated the plaintiff for continued difficulties with low back pain, hip pain, buttock pain, and left-sided leg pain. He also noted that the plaintiff had numbness, tingling, and a burning sensation. Dr. Hunter indicated that the plaintiff's various treatments had not been helpful. He noted that the plaintiff appeared to be in obvious discomfort. She was neurologically weak with plantar and dorsiflexion on the left compared to the right. She had decreased sensation in her S1 dermatomal distribution and decreased ankle jerk on the left. Dr. Hunter detailed surgical options, and the plaintiff agreed to undergo surgery (Tr. 416).

         On July 8, 2010, Dr. Hunter performed left-sided L5-S1 hemilaminectomy, diskectomy, and foraminotomy of the L5 nerve root and foraminotomy of the S1 nerve root (Tr. 336, 417-424).

         On August 4, 2010, Dr. Hunter evaluated the plaintiff for surgery followup. He noted that the plaintiff was doing much better but was still quite hesitant to do any activities. The plaintiff was tender over her lumbar midline, left sacroiliac joint, and sciatic notch on the left. Dr. Hunter advised the ...


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