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Gonzales v. Berryhill

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

March 30, 2017

Rosa Gonzales, Plaintiff,
v.
Nancy A. Berryhill, 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 Civ. 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 Section 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for supplemental security income benefits under Title XVI of the Social Security Act.

         ADMINISTRATIVE PROCEEDINGS

         The plaintiff filed an application for supplemental security income (“SSI”) benefits on July 11, 2012, alleging disability since September 1, 1997. The application was denied initially and on reconsideration by the Social Security Administration. On June 11, 2013, the plaintiff requested a hearing. The administrative law judge (“ALJ”), before whom the plaintiff, her attorney, and Karl S. Weldon, an impartial vocational expert, appeared on August 12, 2014, considered the case de novo, and on November 24, 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 December 21, 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 has not engaged in substantial gainful activity since July 11, 2012, the application date (20 C.F.R. § 416.971 et. seq.).
(2) The claimant has the following severe impairments: anxiety disorder, affective disorder, schizophrenia (residual type), and peptic ulcer (20 C.F.R. § 416.920(c)).
(3) The claimant does not have an impairment or combination of impairments that meets or medically equals the the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926).
(4) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 C.F.R. 416.967(c) except she should have less-than-occasional, if any, exposure to hazards associated with unprotected dangerous machinery or unprotected heights. She is able to understand, remember, and carry out simple, routine, repetitive tasks in a low-stress work environment that is free of fast-paced or team-dependant production requirements, with clearly defined performance expectations, and occasional, if any, job changes. Her work must be performed with less-than-occasional interaction with the general public and only occasional interaction with coworkers.
(5) The claimant has no past relevant work (20 C.F.R. § 416.965).
(6) The claimant was born on September 18, 1991, and was 20 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 C.F.R. 416.963).
(7) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. § 416.964)
(8) Transferability of job skills is not an issue because the claimant does not have past relevant work (20 C.F.R. § 416.968(a)).
(9) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs in the national economy that the claimant can perform (20 C.F.R. § 416.969 and 416.969(a)).
(10) The claimant has not been under a disability, as defined in the Social Security Act, since July 11, 2012, the date the application was filed (20 C.F.R. § 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. § 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 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

         On February 15, 2005, the plaintiff had an initial clinical assessment at Spartanburg Area Mental Health Clinic (“SAMHC”). She was noted to have some social anxiety that was affecting her self-esteem and had caused a significant decline in her school grades. The plaintiff had been adopted by her grandparents. She was noted to have no relationship with her biological father and had never “bonded” with her mother. Following a mental status examination, the plaintiff was diagnosed with generalized social anxiety disorder and a Global Assessment of Functioning (“GAF”) score of 50 (Tr. 255-60).

         On April 27, 2005, Ann Marie Menendez-Caldwell, M.D., of SAMHC, initially evaluated the plaintiff. The plaintiff's grandmother was also present and was noted to have custody of the plaintiff since birth.[2] The plaintiff reported worrying excessively “about everything.” She indicated that she gets palpitations and feels sick to her stomach when she gets nervous. Dr. Menendez-Caldwell indicated that the plaintiff endorsed decreased energy, feeling sad, and being a little angry. The plaintiff's affect appeared to be shy with some dysphoria. Dr. Menendez-Caldwell diagnosed social anxiety disorder; generalized anxiety disorder and depressive disorder, not otherwise specified (“NOS”); school problems; and a GAF score of 50. Dr. Menendez-Caldwell prescribed Lexapro and recommended school-based therapy (Tr. 335-36). Dr. Menendez-Caldwell also treated the plaintiff and adjusted her medications on May 18, 2005 (Tr. 334), June 29, 2005 (Tr. 333), and August 10, 2005 (Tr. 331-32).

         On May 13, 2005, Camille Bramhall, MA, of SAMHC, indicated that the plaintiff was hesitant in therapy and difficult to engage (Tr. 254). On August 1, 2005, Ms. Bramhall indicated that the plaintiff and her grandmother reported progress with being more talkative, less irritable, and having more energy. The plaintiff had a much brighter affect, but she had continued anxiousness about starting school (Tr. 254).

         On October 13, 2005, Lori Barwick, M.D., of SAMHC, noted that the plaintiff's grandmother reported that the plaintiff was unmotivated, had a lack of energy, isolated herself frequently, and had difficulty getting along with peers. Dr. Barwick noted social problems and grade problems. The plaintiff and her grandmother reported episodes of sleepwalking and hypnopompic or hypnogogic hallucinations at night. Dr. Barwick indicated that the plaintiff had a flat affect and a quiet tone but did warm up as the interview continued. Dr. Barwick recommended continued therapy and increased the plaintiff's dose of Celexa (Tr. 329-30).

         On October 31, 2005, Ms. Bramhall indicated that the plaintiff denied significant problems with anxiety but was struggling with social issues. The plaintiff was disheveled and was noted to have become more defiant and more irritable. The plaintiff had difficulty staying on task in therapy sessions. Continued therapy services at school were recommended (Tr. 252).

         On December 28, 2006, Dr. Barwick noted that the plaintiff's grandmother was frustrated over the plaintiff's lack of motivation and lack of energy. Dr. Barwick indicated that the plaintiff was quiet and had a flat affect. Dr. Barwick noted the plaintiff's difficulty tolerating medications. She started the plaintiff on a trial of Prozac (Tr. 328). On January 26, 2006, Dr. Barwick evaluated the plaintiff in the presence of her grandmother, who reported that the plaintiff's motivation seemed better, and Ms. Bramhall noted that the plaintiff had progressed in therapy but continued to have social anxiety. Dr. Barwick increased the plaintiff's dose of Prozac (Tr. 327).

         On January 30, 2006, Ms. Bramhall noted that the plaintiff had become more outgoing verbally, but was having problems with her grades due to her depressive symptoms and anxiety (Tr. 252).

         On April 13, 2006, Dr. Barwick noted that the plaintiff's grandmother reported that Prozac wasn't helping any more and noted that the plaintiff seemed very lethargic and difficult to engage. Dr. Barwick started the plaintiff on a trial of Effexor (Tr. 326).

         On May 1, 2006, Ms. Bramhall indicated that the plaintiff still had a bright affect and mood. She had relationship issues with her grandmother and was “sluggish.” On June 14, 2006, Dr. Barwick noted that the plaintiff and her grandmother reported no significant difference with Effexor. Dr. Barwick indicated that the plaintiff was quiet but responsive with no reported psychosis. Dr. Barwick increased the plaintiff's Effexor dose (Tr. 325). On August 16, 2006, Dr. Barwick noted that the plaintiff couldn't tolerate the increased dose of Effexor. The plaintiff reported she was anxious about starting school. Dr. Barwick switched the plaintiff back to Celexa (Tr. 324). On October 11, 2006, the plaintiff denied problems at school, but her grandmother reported continued frustration over the plaintiff's motivation. Dr. Barwick joined in the grandmother's concerns about her lack of socialization. Dr. Barwick indicated that the plaintiff might have a personality disorder. Dr. Barwick continued the plaintiff on Celexa and advised continued therapy (Tr. 323).

         On October 25, 2006, Susan Henderson, MA, of SAMHC, indicated that the plaintiff was anxious about beginning school but was only having major anxiety one to two times per week. Ms. Henderson recommended continued therapy (Tr. 251).

         On November 30, 2006, Dr. Barwick noted reports of improvement and suggested testing to determine what part of the plaintiff's symptoms involved personality disorders verses anxiety and depression. Dr. Barwick diagnosed social anxiety disorder with some depression, NOS, rule out some underlying schizoid or avoidant personality. She continued the plaintiff on Celexa, advised continued therapy, and ordered testing with Dr. Burns (Tr. 322).

         On January 12, 2007, Ms. Henderson indicated that the plaintiff had been compliant at home and that her anxiety was decreased because of Christmas break (Tr. 251). On May 15, 2007, Ms. Henderson noted continued but diminished anxiety at school (Tr. 249). On August 10, 2007, Ms. Henderson indicated that the plaintiff had displayed extreme anxiety before starting camp. Ms. Henderson indicated that the plaintiff still needed to work on self-confidence (Tr. 249).

         On September 26, 2007, Dr. Barwick noted multiple medication trials. Dr. Barwick noted that the plaintiff had tried to do a summer camp program with Susan Henderson, which resulted in a “full-blown panic attack, completely overwhelmed, hyperventilating.” The plaintiff reported continuing anxiety and nervousness, especially around crowds, but reported that she was doing fairly well with her schoolwork. Dr. Barwick indicated that the plaintiff reported pretty significant panic attacks, with increased heart rate, sweatiness, clamminess, and hyperventilation. Dr. Barwick noted that the plaintiff's symptoms might result from an avoidant personality. Dr. Barwick indicated that the plaintiff's ...


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