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Footman v. Berryhill

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

January 4, 2018

Levone Footman, 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 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 his claim for supplemental security income under Title XVI of the Social Security Act.

         ADMINISTRATIVE PROCEEDINGS

         The plaintiff filed applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) benefits on February 4, 2008, alleging that he became unable to work on June 27, 2005. Both applications were denied initially and on reconsideration by the Social Security Administration. The plaintiff later amended his alleged onset date of disability to August 15, 2007. On March 27, 2009, the plaintiff requested a hearing. Administrative law judge (“ALJ”) Linda R. Haack, before whom the plaintiff and an impartial vocational expert appeared on May 6, 2010, considered the case de novo, and on June 25, 2010, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 86-106). The Appeals Council denied the plaintiff's request for review on July 13, 2011 (Tr. 110-14).

         The plaintiff filed another application for SSI on January 3, 2011, alleging disability beginning June 27, 2005. The claim was denied initially and upon reconsideration. On August 29, 2011, the plaintiff requested a hearing. The plaintiff appeared and testified before ALJ Edward T. Morriss on November 15, 2012. On January 24, 2013, the ALJ issued a decision denying the plaintiff's application for benefits (Tr. 119-27). On April 3, 2014, the Appeals Council granted the plaintiff's request for review and remanded the case to the ALJ with the following directions:

Include decisional language explaining which findings from the prior decision, which was issued on June 25, 2010, remain binding and which do not;
Give further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations (Social Security Ruling 96-8p);
Obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Ruling 83-14).

(Tr. 135-37).

         On August 13, 2015, a second hearing was held. The plaintiff and Mark A. Stebnicki, an impartial vocational expert, appeared at the hearing. On October 8, 2015, ALJ Morriss 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 August 8, 2016.[2] 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 January 3, 2011, the application date (20 C.F.R. § 416.971 et seq.).
(2) The claimant has the following severe impairments: HIV, degenerative joint disease of the shoulders, and degenerative disc disease (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 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, I find that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. § 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 can frequently push/pull with his shoulders bilaterally and frequently push/pull with his right knee; however, he can only occasionally push/pull with his left ankle. He can frequently balance, kneel, and crawl but only occasionally stoop, crouch, and climb ramps and stairs. Additionally, the claimant can never climb ladders, ropes, or scaffolds. He can frequently handle and finger with his bilateral upper extremities but only occasionally reach overhead with his bilateral upper extremities. Furthermore, the claimant must avoid concentrated exposure to extreme cold, extreme heat, and humidity. He must not work around heights or moving machinery.
(5) The claimant is unable to perform any past relevant work (20 C.F.R. § 416.965).
(6) The claimant was born on August 4, 1962, and was 48 years old, which is defined as a younger individual age 18-49, on the date the application was filed. The claimant subsequently changed age category to closely approaching advanced age (20 C.F.R. § 416.963).
(7) The claimant has a limited education and is able to communicate in English (20 C.F.R. § 416.964).
(8) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports 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).
(9) 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. § 416.969(a)).
(10) The claimant has not been under a disability, as defined in the Social Security Act, since January 3, 2011, 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

         Under 42 U.S.C. § 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. § 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. § 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 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 ...


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