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Wright v. Berryhill

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

January 25, 2018

Romella Wright, 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 her 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 27, 2013, alleging that she became unable to work on February1, 2013. Both applications were denied initially and on reconsideration by the Social Security Administration. On May 27, 2014, the plaintiff requested a hearing. The administrative law judge (“ALJ”), before whom the plaintiff and Robert E. Brabham, Jr., an impartial vocational expert, appeared on December 16, 2015, considered the case de novo, and on February 2, 2016, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 114-30). 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 4, 2016 (Tr. 1-7). 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 February 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 impairments: dysfunction of major joints and obesity (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). The claimant can occasionally lift/carry 50 pounds and frequently lift/carry 25 pounds. The claimant can sit for six hours, stand for six hours, and walk for six hours each in an eight-hour workday. The claimant can push/pull as much as she can lift/carry. The claimant can frequently climb ramps and stairs and occasionally climb ladders, ropes, or scaffolds. The claimant can frequently balance, stoop, kneel, crouch, and crawl. The claimant can frequently be in an environment with unprotected heights and moving mechanical parts. The claimant can frequently be in an environment with dust, odors, fumes, and pulmonary irritants.
(6) The claimant is capable of performing past relevant work as follows: (1) cutting machine operator, DOT Number 690.680-010, semi-skilled, medium, SVP 4; (2) doffer, DOT Number 689.686-022, unskilled, medium, SVP 2; (3) packer, DOT Number 753.687-038, light, SVP 2; (4) parts inspector, DOT Number 609.684-010, semi-skilled, light, SVP 4; (5) parts assembler, DOT Number 806.684-010, unskilled, medium, SVP 2; and (6) bakery worker, DOT Number 920.587-018, unskilled, medium, SVP 2. 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 February 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 is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).


         Evidence Before the ALJ

         The plaintiff was born on February 12, 1960, and was 52 years old on her alleged disability onset date of February 1, 2013. She was 55 years old at the time of the ALJ's decision on January 28, 2016. The plaintiff obtained a high school diploma, completed two years of college, and has past relevant work experience as a cutting machine operator, doffer, packer, parts inspector, parts assembler, and bakery worker (Tr. 127-28, 130, 152, 167-68, 302).

         On February 20, 2013, the plaintiff saw Joshua Paul, M.D., for followup of asthma and hypertension. Dr. Paul noted that the plaintiff had not been seen for a year. The plaintiff told Dr. Paul that her weight and blood pressure were elevated because she was just laid off. The plaintiff denied fatigue, dizziness, or weakness. A physical examination was normal. Mental status was intact, with normal mood and affect. Dr. Paul diagnosed mild asthma, hypertension, obesity, and obstructive sleep apnea and prescribed Lisinopril (Tr. 424).

         On August 8, 2013, Dr. Paul saw the plaintiff for followup of asthma, hypertension, and osteoarthritis. Dr. Paul indicated that the plaintiff's asthma was mild, intermittent, and had been under control. The plaintiff complained of ongoing joint pain with no progressive symptoms. The plaintiff denied numbness, weakness, or psychiatric symptoms. According to Dr. Paul, the plaintiff's blood pressure had “come down nicely.” Dr. Paul refilled the plaintiff's blood pressure and asthma medications. Her mental status was intact, with normal mood and affect. A physical examination was normal (Tr. 423).

         On October 30, 2013, Dr. Paul saw the plaintiff for followup of morbid obesity and osteoarthritis, at which time the plaintiff complained of “deteriorating knees.” The doctor noted that the plaintiff's weight was increasing. Dr. Paul wrote that the plaintiff had been in the emergency room for knee pain and that she had applied for disability. The plaintiff had been through physical therapy, oral therapy, and injections. Dr. Paul noted that the plaintiff had been scheduled to see an orthopedist for her knees. The plaintiff's mental status was intact, with normal mood and affect. A physical examination revealed synovitis and swelling of both knees; the examination was otherwise normal. Diagnoses included osteoarthritis, bilateral knee degenerative joint disease, pain, hypertension, and morbid obesity. Dr. Paul discussed medications, lifestyle modifications, and weight loss. He refilled the plaintiff's diclofenac and started her on a trial of tramadol (Tr. 429).

         On December 10, 2013, Dale Van Slooten, M.D., performed a physical residual functional capacity (“RFC”) assessment based on review of the record. Dr. Van Slooten found that the plaintiff could lift and/or carry 50 pounds occasionally and 25 pounds frequently, stand and/or walk for a total of about six hours in an eight hour workday, sit for a total of about six hours in an eight hour workday, and push and/or pull without limitation except as shown for lifting and/or carrying. Dr. Van Slooten also found that the plaintiff could climb ramps/stairs, balance, stoop, kneel, crouch, and crawl frequently, and climb ladders/ropes/scaffolds occasionally, and that she would need to avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, and hazards such as machinery and heights (Tr. 182-84).

         On December 31, 2013, the plaintiff presented in the emergency room with complaints of bilateral knee pain and swelling. The plaintiff reported that she ran out of her medication. The diagnosis was bilateral knee pain secondary to osteoarthritis. The plaintiff was given a prescription for Lortab and instructed to see an orthopedist. Upon discharge, she ambulated without assistance and drove herself home (Tr. 432-33).

         On January 6, 2014, Judith Zink, FNP-C, completed a questionnaire from Disability Determination Services concerning the plaintiff's mental condition because Dr. Paul was no longer with the practice. Ms. Zink reviewed the plaintiff's records and noted that there was no indication of mental health problems. The plaintiff was fully oriented, her thought process was intact, her thought content was appropriate, her mood/affect was normal, and her attention/concentration and memory were good. Ms. Zink stated that the plaintiff exhibited no work-related limitation in function due to a mental condition (Tr. 436-37).

         On January 22, 2014, Garland Gudger, M.D., saw the plaintiff for complaints bilateral knee pain, right worse than left. The plaintiff reported pain in her shoulders, back, and knees, left greater than right. She described her pain as constant, aching, cramping, burning, stabbing, and throbbing. The plaintiff conveyed that her pain was debilitating. The plaintiff reported that she was ambulating with a cane.[2] She stated that she had steroid injections to both knees over a year and a half ago that lasted one to two months. X-rays of the bilateral knees, taken that day, showed moderate medial compartment arthritis with medial compartment joint space narrowing, subchondral sclerosis, and osteophyte formation. The plaintiff said that her knees hurt worse with activity, such as walking, and were somewhat improved with rest. The plaintiff reported trying injections and indicated that she had a stomach ulcer that limited her ability to take anti-inflammatories. Dr. Gudger found no swelling or effusion in the plaintiff's knees. He noted that the plaintiff was obese and had palpable painful crepitus with bilateral knee flexion and extension. She had full extension of her bilateral knees and flexion to 100 degrees that caused severe pain. The diagnosis was knee osteoarthritis, worse in the medial compartment and patellofemoral joints. Dr. Gudger noted that the plaintiff was “pretty histrionic today in the clinic.” She wanted to continue with conservative management and agreed to injections of both knees. Dr. Gudger injected both knees and recommended followup in six weeks (Tr. 440, 449).

         On February 19, 2014, Dr. Gudger saw the plaintiff for followup. The plaintiff stated that she received no relief from the injections and that her knees had worsened. She was still ambulating with a cane. She had no significant swelling or effusion. Dr. Gudger indicated that the plaintiff was morbidly obese. She had stable crepitus with bilateral knee flexion and extension. She had full extension and flexion to about 100 degrees bilaterally, but it caused her severe pain. The plaintiff had pain with patellar grind. Dr. Gudger found her to have tenderness along her medial and lateral joint line. He wrote that she was ligamentous stable and neurovascularly intact distally. When questioned for a risk assessment, the plaintiff denied recent falls and stated that she did not need assistance to walk. Dr. Gudger noted, “Once again, in our office today, she is pretty histrionic stating injections did not give her any relief whatsoever. Overall, her arthritis is not terrible. I think we need to continue to try to treat this conservatively.” Dr. Gudger stated that it was unfortunate that the plaintiff could not take anti-inflammatories due to a stomach ulcer. The plaintiff weighed 305.6 pounds, making her body mass index (“BMI”) 46.19, and Dr. Gudger felt weight loss would help immensely. Dr. Gudger recommended exercise and weight loss and prescribed physical therapy. He started the plaintiff on Norco (Tr. 446-47).

         On February 27, 2014, the plaintiff had a physical therapy evaluation for her bilateral knee pain. The plaintiff reported four years of progressive knee pain, left greater than right. The plaintiff described pain in her low back, both shoulders, and knees. The therapist noted that the plaintiff was very focused on her pain, and she would not allow them to palpate her left knee or perform range of motion testing. The plaintiff had poor to fair balance with a straight cane and an antalgic gait pattern. The plaintiff was given a home exercise program and advised to call the clinic if she wanted to proceed with physical therapy (Tr. 444, 453-55).

         On March 27, 2014, the plaintiff had bilateral knee x-rays that showed mild osteoarthritis (Tr. 469-70).

         On March 29, 2014, Jessica Hannah, M.D., performed a consultative physical examination upon referral from Disability Determination Services. The plaintiff alleged disability due to bilateral arthritis in her knees. The plaintiff reported that she had osteoarthritis in her knees for six years, which had gotten acutely worse in the last two years. The plaintiff tried injections, which were not beneficial. She tried tramadol and Percocet occasionally but found that they did not alleviate her symptoms. Dr. Hannah noted that the plaintiff tried physical therapy but quit after one month due to pain. The plaintiff reported needing help from her children with cooking, cleaning, and driving. The plaintiff was using a walker that her neighbor had given her. Dr. Hannah observed that the plaintiff ambulated into the clinic with a walker, took extensive time to ambulate, and displayed significant transient exacerbation of symptoms throughout the examination. Review of x-rays taken on March 27, 2013, showed the plaintiff's left and right knee revealed mild osteoarthritis (Tr. 456-58, 469-70). The plaintiff would not permit Dr. Hannah to ...

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