United States District Court, D. South Carolina, Greenville Division
Crystal D. Harris, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
F. McDonald United States Magistrate Judge
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
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.
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.
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
(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
(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)
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.
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. §
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
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),
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).
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.
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
Laws v. Celebrezze, 368 F.2d 640, 642
(4th Cir. 1966) (citation omitted).
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).
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).
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).
March 23, 2010, and April 5, 2010, the plaintiff underwent
lumbar translaminar epidural steroid injections (Tr. 414,
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
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,
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