United States District Court, D. South Carolina, Greenville Division
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 July 19, 2012, alleging that
she became unable to work on October 23, 2010. The
applications were denied initially and on reconsideration by
the Social Security Administration. On July 10, 2013, the
plaintiff requested a hearing. The administrative law judge
(“ALJ”), before whom the plaintiff and Tonetta
Watson-Coleman, an impartial vocational expert, appeared on
May 6, 2014, considered the case de novo, and on May
30, 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 5,
2015. The plaintiff then filed this action for judicial
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 September 30, 2015.
(2) The claimant has not engaged in substantial gainful
activity since October 23, 2010, the alleged onset date (20
C.F.R §§ 404.1571 et seq., and 416.971
(3) The claimant has the following severe impairments: back
disorder and pain from cancer surgery (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). Specifically, the claimant can
lift and carry up to 20 pounds occasionally and 10 pounds
frequently and stand, walk, and sit for 6 hours each in an
8-hour work day. The claimant cannot climb ladders, ropes, or
scaffolds, but she can occasionally climb ramps and stairs.
She can frequently balance and reach overhead bilaterally.
The claimant can occasionally stoop, kneel, crouch, and
crawl. Additionally, she must avoid concentrated exposure to
moving machinery and unprotected heights.
(6) The claimant is capable of performing past relevant work
as a housekeeper. This work does not require the performance
of work-related activities precluded by the claimant's
residual functional capacity (20 C.F.R. §§ 404.1565
(7) The claimant has not been under a disability, as defined
in the Social Security Act, from October 23, 2010, through
the date of this decision (20 C.F.R. §§ 404.1520(f)
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 52 years old on her alleged disability onset
date and 56 years old on the date of the ALJ's decision
(Tr. 51). She has a seventh or eighth grade education, has
never received a GED, and has past relevant work as a
housekeeper (Tr. 39).
plaintiff underwent a right breast lumpectomy and axillary
dissection in 1989 followed by radiation (Tr. 303, 319). In
July 2001, the plaintiff underwent a right mastectomy. In May
2006, the plaintiff underwent a right axillary mass resection
followed by Lupron plus Femara treatment, Tamoxifen, another
course of Femara, and Arimidex (Tr. 319).
notes from January 12, 2010, showed that the plaintiff could
not afford Arimidex, and she was switched to Femara. The
plaintiff denied any focal bone pain, abdominal pain,
abdominal distention, early satiety, nausea, vomiting,
fevers, chills, bruising, or bleeding. Although she reported
increasing fatigue and tiredness, she did not display any new
adenopathy, right chest wall nodules, or left breast masses
(Tr. 334). Her thyroid was prominent with symmetrical
enlargement. At this time, the plaintiff was assessed as
doing well with regard to her breast cancer (Tr. 335).
February 16, 2010, she complained at the Medical University
of South Carolina (“MUSC”) emergency department
of back pain and right leg swelling diagnosed as flank pain
(Tr. 291-92). She followed up with her primary care physician
on February 28, 2010. Exam noted tenderness and spasm in the
lumbar spine. Gait, balance, and strength were all normal.
Assessment was lower back muscle spasm (Tr. 400-401).
plaintiff returned to the MUSC cancer clinic on May 17, 2010.
She had recent non-specific back pain. A thoracic MRI had
shown no evidence of metastatic disease. A thyroid ultrasound
from January showed borderline enlarged thyroid with
scattered cysts bilaterally. She was switched back to
tamoxifen to complete adjuvant endocrine therapy due to not
tolerating letrozole well (Tr. 314-17, 332-33). A May 2010
mammogram did not reveal any abnormalities (Tr. 426)
November 4, 2010, the plaintiff treated with her primary care
group, and upon examination, she had a full range of motion,
no tenderness in her back, normal gait, normal balance, and
normal motor strength. She was diagnosed with diabetes
mellitus and was started on Metformin at Palmetto Primary
Care Physcians (Tr. 395-96). The plaintiff treated with her
primary care practice group again on November 11, 2010, for
followup (Tr. 389-91). At this time, with regard to her
musculoskeletal exam, the plaintiff had a full range of
motion and presented with a normal gait and balance. The
plaintiff reported that she had gone to the emergency room
for weakness, the clinician noted that her blood pressure now
looked better, and with regard to this, she admitted that she
had not been compliant before in taking her medication (Tr.
390-91). On November 10, 2010, the plaintiff complained of
chest pain; however, a subsequent EKG was normal with a left
ventricular ejection fraction of 73% (Tr. 429).
December 3, 2010, the plaintiff treated with physician's
assistant Shirley Ho, and she again had a full range of
motion, normal gait, and normal balance (Tr. 388). At this