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Dendy v. Berryhill

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

January 22, 2018

ALTHEA DENDY, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE.

         This case is before the court for a Report and Recommendation pursuant to Local 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). The Plaintiff, Althea Dendy, brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding her claim for disability insurance benefits (“DIB”) under Title II of the Social Security Act. For the reasons stated herein, the undersigned recommends that the Commissioner's decision be affirmed.

         ADMINISTRATIVE PROCEEDINGS

         The Plaintiff applied for DIB on May 22, 2013, and was 53 years old on her amended alleged disability onset date of September 6, 2012. (R. 185, 301.) The Plaintiff claimed disability for stage 2 breast cancer, liver problems, hypertension, neuropathy of feet and hands, and fatigue. (R. 218.) The Plaintiff's application for DIB was denied initially and on reconsideration. (R. 106, 123.) The Plaintiff requested a hearing, which was held on April 1, 2015, before an Administrative Law Judge (“ALJ”). (R. 32.) The ALJ issued his decision on June 15, 2015, and it is now the Commissioner's final decision for purposes of judicial review. (R. 14-24.) The Plaintiff filed an appeal to the Appeals Council which was denied review. (R. 1-5.) In making the determination that the Plaintiff was not entitled to benefits, the Commissioner 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 September 6, 2012, the alleged onset date (20 CFR 404.1571 et seq.).
(3) The claimant has the following severe impairments: carpal tunnel syndrome (CTS); lumbar and cervical degenerative disc disease; peripheral neuropathy; status post breast cancer and reconstruction; neuropathic changes in the right tibialis anterior and medial gastrocnemius muscles, and obesity that is severe in combination (20 CFR 404.1520(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 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity (RFC) to perform light work as defined in 20 CFR 404.1567(b) that does not require climbing ladders, ropes, or scaffolds; more than occasional climbing ramps or stairs, crouching, or crawling; more than frequent balancing, stooping, or kneeling; or more than frequent handling and fingering bilaterally.
(6) The claimant is capable of performing past relevant work as a bank teller and case manager. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
(7) The claimant has not been under a disability, as defined in the Social Security Act, from September 6, 2012, through the date of this decision (20 CFR 404.1520(1)).

(R. 14-24.)

         APPLICABLE LAW

         The 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 the Act 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 a continuous period of not less than” twelve months. See 42 U.S.C. § 423(d)(1)(A).

         To facilitate a uniform and efficient processing of disability claims, the 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 which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 4, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).

         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. See SSR 82-62, 1982 WL 31386, at *3. The plaintiff bears the burden of establishing her 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 that he is unable to return to her past relevant work. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Way v. Astrue, 789 F.Supp.2d 652, 656 (D.S.C. 2011).

         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. See Grant, 699 F.2d at 191. 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. See Id. at 191-92.

         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.” Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)); see also 42 U.S.C. § 405(g). 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. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g); Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)); see also Sawyer v. Colvin, 995 F.Supp.2d 496, 507 (D.S.C. 2014). The phrase “substantial evidence” is defined as:

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 less than a preponderance.

Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal quotation marks and citations 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 her 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. Kellough v. Heckler, 785 F.2d 1147, 1149 (4th Cir. 1986).

         DISCUSSION

         The Plaintiff asserts that the ALJ erred in the following three ways:

1. The ALJ failed to consider the Plaintiff s fatigue that arose out of her breast cancer treatment in his Residual Functional Capacity (“RFC”) analysis.
2. The ALJ failed to properly evaluate the demands of the Plaintiffs past relevant work.
3. The ALJ failed to consider the combined effect of the Plaintiffs severe and ...

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