United States District Court, D. South Carolina
Teresa A. Jeter, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.
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 reversed and remanded for
further administrative action.
January 4, 2012, Plaintiff protectively filed for DIB under
Title II of the Act, 42 U.S.C. §§ 401-433, alleging
she became disabled on December 3, 2011. Tr. 124-25. After
being denied initially, Tr. 87, and upon reconsideration, Tr.
97, Plaintiff requested a hearing before an Administrative
Law Judge (“ALJ”), Tr. 119-20. The ALJ conducted
a hearing on September 4, 2013, taking testimony from
Plaintiff and Vocational Expert (“VE”) Leanna
Hollenbeck. Tr. 26-55. Representing Plaintiff at that hearing
was her attorney, Charles Edwards. Tr. 26. The ALJ denied
Plaintiff's claim in a decision dated March 28, 2014. Tr.
9-21. Plaintiff requested review of this decision from the
Appeals Council, Tr. 8, which denied her request on September
17, 2015, Tr. 1-6, making the ALJ's March 28, 2014
decision the Commissioner's final decision for purposes
of judicial review. Plaintiff brought this action seeking
judicial review of the Commissioner's decision in a
Complaint filed November 11, 2015. ECF No. 1.
Plaintiff's Background and Relevant Medical History
was born in December 1961 and was 49 years old as of her
alleged onset date of December 3, 2011. Tr. 157. In her form
Disability Report-Adult Plaintiff indicated she completed the
ninth grade and her past relevant work (“PRW”)
included assistant manager in a convenience store,
cashier/cook at a fast food chain and in a restaurant,
kitchen aide in a nursing home, meat packager in a food
processing company, and sorter/material cutter at textile
plants via temporary agencies. Tr. 162. Plaintiff indicated
she stopped working on June 6, 2011 when she was terminated
for allowing a non-employee to empty the trash. Tr. 161.
Plaintiff indicated that her conditions of high blood
pressure, diabetes, Hepatitis C, trigger finger right thumb,
and blurred vision became severe enough for her to stop
working on December 3, 2011. Id. In a subsequent
Disability Report-Appeal dated March 29, 2012, Plaintiff
indicated her “hands have gotten worst (sic) my thumb
on my right hand don't bend at all now, and my left hand
the pain has gotten more severe and it swells, my left foot
swells if I stand or walk too long and also has pain and is
tender.” Tr. 193. Plaintiff indicated that as a result
she “can't use my hands like I use to. I drop
things and my hands are weak. My left foot can't stand
for a long period of time, my foot swells.”
Id. In a Disability Report-Appeal dated June 20,
2012, Plaintiff's counsel reported that the “Pain
in both hands has gotten much worse in the last few months.
She has trouble holding on to things. She has trouble
dressing herself, combing hair, brushing teeth, and tying her
shoes.” Tr. 202. The Report also includes the following
new condition: “She has been diagnosed with authorities
(sic) in her left knee and ankle. Her left leg swells almost
daily and is very painful.” Tr. 203.
Relevant Medical History
Matthew Fox, M.D.
March 22, 2012, State agency consultant Matthew Fox, M.D.
completed a Physical RFC Assessment of Plaintiff in
conjunction with the disability determination denying
Plaintiff's claim for DIB at the initial level. Tr.
91-93. Dr. Fox found that Plaintiff could occasionally lift
and carry 50 pounds, frequently lift and carry 25 pounds,
stand and/or walk for a total of six hours in an eight-hour
day, sit for about six hours in an eight-hour workday, and
was limited in both upper extremities for pushing and/or
pulling. Tr. 92. Dr. Fox indicated Plaintiff had no postural
limitations, but she had manipulative limitations that
included limited handling and fingering (gross and fine
manipulation). Id. He indicated Plaintiff had no
manipulative limitations with regard to reaching in any
direction or feeling. Id. Dr. Fox indicated
Plaintiff should “limit bilat handling and fingering to
freq 2nd to trigger thumbs.” Id. Dr. Fox
opined that Plaintiff had no visual, communicative, or
environmental limitations. Tr. 92-93. As part of his
additional explanation Dr. Fox concluded: “The
claimant's reported limitations are partially credible.
MDIs exist, but objective medical evidence does not support
the severity of reported limitations. The claimant's MSK
impairment is severe, but would not be expected to preclude
work as described in this RFC.” Tr. 93.
Adrian Corlette, M.D.
1, 2012, State agency consultant Adrian Corlette, M.D.
completed a Physical RFC Assessment of Plaintiff in
conjunction with the disability determination denying
Plaintiff's claim for DIB at the reconsideration level.
Tr. 102-04. Dr. Corlette's limitations were the same as
Dr. Fox's. Id.
Melanie Johnson-Bailey, M.D.
two months after the administrative hearing on September 4,
2013, Dr. Johnson-Bailey conducted a Disability Examination
of Plaintiff on October 26, 2013. Tr. 337-40. Plaintiff
reported having knee and ankle problems, high blood pressure,
diabetes mellitus, and hepatitis C. Tr. 337. Plaintiff noted
that her last job was in June 2011; she can dress and feed
herself; she can stand for 20 minutes, sit for 30 minutes,
and walk on level ground for 30 minutes. Tr. 338. She
reported being unable to lift anything, but she can drive a
vehicle and the only chore she can do is sweeping.
Id. On general examination Dr. Johnson-Bailey noted
that Plaintiff's left ankle was “extremely TTP
[tender to palpation] with edema” and measured 11.5
inches compared to her right ankle measurement of 9.5 inches.
Tr. 339. Dr. Johnson-Bailey provided the following opinion
regarding Plaintiff's functional limitations:
The claimant had no functional limitations in regards to Knee
and ankle problems, HBP, DM, Hep C.
Back/neck/hands/knee/ankle pain: ROM [range of motion]
testing wnl [with no limits]. There were no findings to
indicate functional limitation.
HBP: claimant reports uncontrolled BP, however, she had a
normal BP and pulse on exam.
Hep C: Chronic medical problem. There is no evidence of liver
dysfunction and MRs do not indicate she has any symptoms due
to Hep C.
DM II - Not a cause of functional limitation.
November 1, 2013, Dr. Johnson-Bailey completed a Medical
Source Statement of Ability To Do Work-Related Activities
(Physical). Tr. 343-48. She indicated Plaintiff could
continuously lift up to 10 pounds, and occasionally lift up
to 100 pounds; continuously carry up to 10 pounds,
occasionally carry 11 to 20 pounds, and never carry over 21
pounds. Tr. 343. She indicated Plaintiff could sit for one
hour at one time without interruption with a total four hours
in an eight-hour workday; stand for one hour without
interruption with a total of three hours in an eight-hour
workday; and walk for one hour uninterrupted with a total of
one hour in an eight-hour workday. Tr. 344. Dr.
Johnson-Bailey opined that Plaintiff could reach, handle,
finger, feel, and push/pull continuously with her right and
left hands; and she could operate foot controls continuously
with both feet. Tr. 345. She indicated Plaintiff could
frequently climb stairs and ramps; occasionally climb ladders
or scaffolds; and frequently balance, stoop, kneel, crouch,
and crawl. Tr. 346. Dr. Johnson-Bailey indicated Plaintiff
had no hearing or visual impairments and could never tolerate
exposure to unprotected heights; frequently tolerate exposure
to moving mechanical parts, operating a motor vehicle,
humidity and wetness, and vibrations; and could occasionally
tolerate exposure to dust, odors, fumes and pulmonary
irritants, extreme cold, and extreme heat. Tr. 347. Dr.
Johnson-Bailey indicated Plaintiff could perform the
following activities: shop; travel without a companion;
ambulate without assistive devices; walk for a block at a
reasonable pace on rough or uneven surfaces; use standard
public transportation; climb a few steps at a reasonable pace
with use of a single hand rail; prepare a simple meal and
feed herself; care for her personal hygiene; and sort,
handle, or use paper files. Tr. 348.
September 4, 2013, Plaintiff appeared with counsel at an
administrative hearing and testified regarding her
application for DIB. Tr. 26. VE Leanna Hallenbeck also
appeared by telephone and testified at the hearing. Tr. 28.
response to questions from the ALJ Plaintiff testified that
she was 51 years old, single, lived in an apartment with a
friend, completed the eighth grade and part of the ninth, did
not obtain a GED, and has not had any special job training.
Tr. 31-32. Plaintiff also stated that she has a driver's
license and was never in the military. Tr. 33. Plaintiff
testified that she last worked on June 6, 2011, when she was
terminated because she got sick and had a non-employee do her
work of emptying the trash. Tr. 33-34. When asked what kept
her from returning to work Plaintiff testified that she was
“sickly a lot” from hepatitis and diabetes. Tr.
34. Plaintiff also testified that her hands “hurt all
the time, constantly.” Id. Plaintiff stated
that when she was young she had surgery on her right leg and
if she stands for a long period of time her leg swells and
“gives out” on her. Id. Plaintiff also
testified that she has arthritis in her right knee and so far
has had one injection in her knee. Id. Plaintiff
testified that she is being treated at St. Luke's free
medical clinic for her leg problems and after one injection
in her right knee they told her to take Advil or Ibuprofen
for pain. Id. She stated that she was also given
pain pills after the surgery on her thumb. Tr. 34-35.
Plaintiff testified that four months ago she had x-rays done
on her back because of pain in her neck and between her
shoulder blades. Tr. 35. Plaintiff testified that she was
told she “was having spasms from a previous
surgery” but “to do any more surgery could cause
[her] to be paralyzed or something so [her doctor] just gave
[her] pain medicine for that, Tramadol.” Id.
response to questions from her counsel Plaintiff testified
that initially the pain in her hands started in her thumbs
“but now it's just my whole hands.” Tr. 35.
Plaintiff stated she was told she had osteoarthritis in both
hands and trigger finger in both thumbs. Id.
Plaintiff stated that she does not have to be doing anything
with her hands for them to ache and “they throb all the
time.” Tr. 36. Plaintiff testified that her hands are
weak and she drops things and “can't pick up things
with [her] fingers.” Id. Plaintiff testified
that cortisone injections offer relief for a short period of
time but because the pain always returns she was told she
would need surgery. Id. Plaintiff confirmed that
three days prior to the hearing she had surgery on her right
hand and when she was scheduled to return to the doctor on
September 9th to have the stiches removed he was going to
look at her left hand. Id. Plaintiff testified that
because of not having full use of her hands she had a hard
time getting dressed, using the bathroom, and doing her hair.
Id. Plaintiff stated that her daughter helps her.
Id. Plaintiff's counsel noted that Plaintiff had
in the past done kitchen work and asked if she had any
trouble with her hands in doing that work. Id.
Plaintiff testified that she is unable to lift pots and pans
and has “broken many plates.” Tr. 37.
testified that she was hit by a car when she was six or seven
years old and her left leg and ankle are “deformed from
the surgery.” Tr. 37. Plaintiff confirmed that she has
a scar around her ankle and the bone protrudes out a bit but
testified that “it's not painful all the time but
it bothers me when I'm standing or walking and then it
gives out on me.” Id. Plaintiff testified that
she has hepatitis C and that since she stopped working and
her health insurance was terminated on December 31, 2011, she
has been unable to get treatment for her liver. Tr. 38.
Plaintiff testified that the hepatitis “causes [her] to
feel nauseated and sickly all the time and sometimes when
[she] eat[s] something [she] get[s] sick.” Id.
Plaintiff testified that when she asked the person to help
her take the trash out at work it was because she “was
sick and [her] hands were bothering [her].” Tr. 39.
Plaintiff confirmed that she had neck surgery in 2003 and as
a result she “can move it but [she] can't turn it
so far . . . because it hurts and especially here recently .
. . the pain has just gotten worse . . . .” Tr. 39-40.
Plaintiff also confirmed that she had an injection in her
knee in July 2012 that “helped it for a little while
but it still hurts . . . .” Tr. 40. Plaintiff testified
that she takes medication for her diabetes and her weight
fluctuates but she is unsure if it is because of the diabetes
or because of her liver. Id. Plaintiff stated her
current weight was 182 pounds, down from 200 pounds.
Id. Plaintiff stated that although she was
terminated in June of 2011 she listed her onset date as
December 2011 because she tried to find work after she was
fired and drew unemployment compensation for a little while.
Tr. 40-41. Plaintiff testified that she ...