United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
GORDON BAKER, UNITED STATES MAGISTRATE JUDGE.
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.
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
(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
(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
(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)).
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).
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).
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).
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
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
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).
Plaintiff asserts that the ALJ erred in the following three
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 ...