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Johnson v. Colvin

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

January 3, 2017

Gwendolyn Delores Johnson, 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 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 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 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 et seq.).
(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 and 416.965).
(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) and 416.920(f)).

         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 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).

         The 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).

         Treatment 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).

         On 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).

         The 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)

         On 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).

         On 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 time, ...


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