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Sellers v. Berryhill

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

January 22, 2018

Wallace Duncan Sellers, IV, Plaintiff
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.



         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 his claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.


         The plaintiff filed applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) benefits on August 12, 2013, alleging that he became unable to work on April 1, 2013. Both applications were denied initially and on reconsideration by the Social Security Administration. On June 27, 2014, the plaintiff requested a hearing. The administrative law judge (“ALJ”), before whom the plaintiff, his attorney, and Tonetta Watson-Coleman, an impartial vocational expert, appeared on October 15, 2015, considered the case de novo, and on November 16, 2015, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 119-32). The plaintiff amended his alleged onset date to August 1, 2013, at the hearing. 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 November 8, 2016 (Tr. 1-6). 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, 2017.
(2) The claimant has not engaged in substantial gainful activity since August 1, 2013, the alleged onset date (20 C.F.R §§ 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairment: osteoarthritis (OA) (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 medium work as defined in 20 C.F.R. 404.1567(c) and 416.967(c) except with some limitations. Due to postural limitations, the claimant is capable of frequent balancing, stooping, kneeling, crouching, crawling, and climbing of ramps or stairs. However, the claimant must avoid all climbing of ladders, ropes, and scaffolds. Due to manipulative limitations, the claimant is limited to only occasional overhead reaching with his dominant upper extremity, but is capable of frequent overhead reaching with the non-dominant upper extremity.
(6) The claimant is capable of performing past relevant work as a grocery store manager, convenience store manager, and security alarm salesman. 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 August 1, 2013, 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.


         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).


         The plaintiff was 44 years old on his amended alleged onset date (August 1, 2013) and 46 years old on the date of the ALJ's decision (November 16, 2015) (Tr. 194). He graduated from high school and earned an associate's degree (Tr. 148-49). The plaintiff has past relevant work experience as a grocery store manager, convenience store manager, and security alarm salesman (Tr. 130). He last worked as a stocker at a retail store; he stopped working in July 2013 (Tr. 148-49).

         On April 15, 2009, the plaintiff saw Brandy Bryant-Herndon, FNP-C, at Latta Internal Medicine Associates (“Latta”), for arthritis, pain, and high blood pressure. When the plaintiff returned on February 8, 2010, his blood pressure was 160/100, he was out of Toprol, and he was nervous, depressed, and sad.

         On August 18, 2009, Robert Turner, III, M.D., a rheumatologist, examined the plaintiff for seronegative arthritis with reports of morning stiffness, anemia, and crepitation in his shoulders and knees. The plaintiff was prescribed prednisone in addition to his other pain medications and gout medication. The plaintiff's condition was unimproved in December 2009 and April 2010. On April 15, 2010, the plaintiff told Dr. Turner he was still having morning stiffness; his pain was unimproved; and he was having difficulty with shoelaces and buttons, getting in and out of bed, picking up clothes off the floor, using faucets, and getting in and out of car. Dr. Turner felt that the plaintiff was experiencing a flare of gout (Tr. 508-11).

         On December 17, 2010, James R. Carroll, M.D., treated the plaintiff for gout, severe rheumatoid arthritis, and chronic obstructive pulmonary disease (“COPD”). When the plaintiff returned to Dr. Carroll on January 3, 2011, he continued to report severe pain from rheumatoid arthritis. On January 7, 2011, Dr. Carroll stated that the plaintiff had severe rheumatoid arthritis, as well as fibromyalgia with chronic pain. When the plaintiff saw Dr. Carroll again on February 3, 2011, the doctor noted that the plaintiff had severe pain from rheumatoid arthritis, and his blood pressure was 142/92 (Tr. 536-40). On January 10, 2011, Dr. Carroll noted that the plaintiff suffered from multiple major medical problems, including severe rheumatoid arthritis, fibromyalgia, chronic pain, anxiety, and depression. Dr. Carroll stated that, in his opinion, the plaintiff was totally and permanently disabled (Tr. 529).

         On January 3, 2012, Dr. Carroll examined the plaintiff for withdrawal symptoms from discontinuation of his pain medication. In February 2012, the plaintiff was treated for bronchitis, and in March 2012, he reported to Dr. Carroll that his depression medications were not working (Tr. 1015-19).

         On October 3, 2012, Dr. Carroll indicated that the plaintiff had bilateral knee pain with swelling. His blood pressure was 140/90. The plaintiff received Decadron and Depo-Medrol injections in November 2012 and January, February, April, May, June, and August 2013 for bilateral knee, shoulder, and back pain. (Tr. 559-72).

         The plaintiff was treated at the Marion Regional Hospital Emergency Room on February 13, 2013, for left shoulder pain when he fell off of a ladder at work. X-rays revealed no fracture or dislocation, and the plaintiff was diagnosed with ligamentous sprain (Tr. 651). The plaintiff began physical therapy on his shoulder, and by April 2013, he reported increased function and more ease using his left arm at work. The plaintiff's physical therapist said he could return to work (Tr. 638-39).

         On February 20, 2013, the plaintiff was examined at Marion Orthopaedics Associates for left shoulder injury with positive impingement signs. He was diagnosed with left shoulder pain and possible rotator cuff tear. On February 28, 2013, an MRI of the plaintiff's left upper extremity showed that he had a possible tear of the infraspinatus tendon with a fairly marked amount of fluid in the subdeltoid and subacromial bursa and fairly marked degenerative changes at the acromioclavicular joint with capsular hypertrophy. On March 4, 2013, when the plaintiff returned for a followup, he still had limited range of motion and pain in his left shoulder. On March 18, 2013, Kimberly Spivey, a nurse practitioner at Marion Orthopaedics, diagnosed left shoulder pain, possible tear of the infraspinatus tendon, and possible inflammation. She sent the plaintiff for an evaluation by occupational therapy. On April 8, 2013, the plaintiff was told to continue physical therapy for another three weeks. He reported increased fatigue and discomfort at the end of the day, but he reported increased function and use and decreased pain (Tr. 548-54, 638).

         On May 31, 2013, Dr. Carroll noted that he was giving the plaintiff injections for chronic pain and arthritis. On June 14, 2013, Dr. Carroll examined the plaintiff for bilateral knee pain with reduced range of motion and arthritis. On July 15, 2013, the plaintiff had bilateral knee x-rays, which showed degenerative/osteoarthritis change of his right knee and minimal joint space narrowing of the left knee (Tr. 642-45).

         On July 30, 2013, Janet Woolery, M.D., a psychiatrist, examined the plaintiff, who reported episodes of mania with passing out; violent episodes; episodes of losing time; either being wide open or asleep; having an inability to focus on anything; and episodes of being hyper and then being depressed. Dr. Woolery diagnosed mood disorder, not otherwise specified, and opiate dependence in full remission. She prescribed Seroquel and continued the plaintiff's Cymbalta. On August 30, 2013, Dr. Woolery noted that the plaintiff still could not sleep, and she increased his Seroquel (Tr. 579-81).

         On September 4, 2013, Dr. Carroll stated that the plaintiff had generalized anxiety disorder and depression and prescribed Cymbalta. Dr. Carroll indicated that the plaintiff had depressed mood/affect, poor attention/concentration, and poor memory. Dr. Carroll also felt that the plaintiff had ...

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