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Holley v. Berryhill

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

September 18, 2017

Tammy L. Holley, 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 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 2, 2010, alleging she became unable to work on November 1, 2006. The applications were denied initially and upon reconsideration by the Social Security Administration. On June 14, 2011, the plaintiff requested a hearing. The administrative law judge (“ALJ”), before whom the plaintiff and Arthur F. Schmitt, Ph.D., an impartial vocational expert, appeared on July 24, 2012, via video, considered the case de novo, and on August 17, 2012, 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 review on August 7, 2013.

         The plaintiff sought judicial review of the ALJ's decision, and on January 9, 2015, the United States District Court for the District of South Carolina remanded the case to the Commissioner for further administrative review in Holley v. Comm'r of Soc. Sec. Admin., C.A. No. 6:13-2704-BHH. On February 13, 2015, the Appeals Council issued an order remanding the case to the ALJ for proceedings consistent with the court's order. On June 23, 2015, a second video hearing was held, and on August 20, 2015, the ALJ issued a decision finding the plaintiff was not disabled (Tr. 592-605). Prior to the hearing, the plaintiff amended her alleged onset date to September 14, 2009. The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council declined to assume jurisdiction on June 15, 2016 (Tr. 579-85). 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 December 31, 2009.
(2) The claimant has not engaged in substantial gainful activity since September 14, 2009, the amended alleged onset date (20 C.F.R. §§ 404.1571 et seq. and 416.971 et seq.).
(3) The claimant has the following severe impairments: obesity; rheumatoid arthritis; fibromyalgia; status post right wrist carpal tunnel surgery; and hearing loss (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, 404.1526, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, the undersigned finds 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 ten pounds frequently and stand, walk, and sit for six hours each in an eight-hour work day; however, the claimant can never climb, crawl, kneel, or tolerate exposure to loud noise. She must have a sit/stand option at will. She can occasionally finger bilaterally and frequently handle bilaterally. The claimant can perform occasional overhead reaching bilaterally.
(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 July 23, 1964, and was 45 years old, which is defined as a younger individual age 18-49, on the amended alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 C.F.R. 404.1563 and 416.963).
(8) The claimant has a high school education and is able to communicate in English (20 C.F.R. §§ 404.1564 and 416.964).
(9) Transferability of job skills is not material to the determination of disability because the Medical-Vocational Rules support 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 September 14, 2009, through the date of this decision (20 C.F.R. §§ 404.1520(g) and 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

         Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an “inability to do 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 a continuous period of not less than 12 months.” 20 C.F.R. §§ 404.1505(a), 416.905(a).

         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 meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. §§ 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 claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.

         Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings “are supported by substantial evidence and were reached through application of the correct legal standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Id. In reviewing the evidence, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

         EVIDENCE PRESENTED

         The plaintiff was 45 years old on her amended alleged disability onset date (September 14, 2009) and was 51 years old on the date of the ALJ's decision (August 20, 2015). She has a high school education and past relevant work as a medical records assistant and a pharmacy technician (Tr. 618).

         The plaintiff's medical history at the Carolina Spine Institute includes a 1978 left tympanoplasty (eardrum repair surgery), 1994 cervical discectomy and fusion, and a 1998 carpal tunnel release (Tr. 270, 285, 293). On January 20, 2003, the plaintiff returned with neck pain. A left cervical epidural steroid ...


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