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Aiken v. Commissioner, Social Security Admin.

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

January 26, 2018

Nichelle B. Aiken, Plaintiff,
v.
Commissioner, Social Security Admin., Defendant.

          REPORT AND RECOMMENDATION

          Mary Gordon Baker Judge.

         Plaintiff Nichelle B. Aiken, through counsel, seeks judicial review of an unfavorable final administrative decision denying benefits on her applications for a period of disability and disability benefits (DIB) and supplemental security income (SSI) pursuant to Titles II and XVI of the Social Security Act (“SSA”). This matter was referred to the assigned United States Magistrate Judge for review pursuant to Local Civil Rule 73.02(B)(2)(a) and 28 U.S.C. § 636(b)(1)(B). Having carefully considered the parties' briefs, administrative record, and applicable authority, the Magistrate Judge recommends that the Commissioner's final decision is supported by substantial evidence and should be affirmed, for the following reasons:

         I. Standard of Review

         The Court's review of the Commissioner's final decision is limited to: (1) whether substantial evidence supports such decision; and (2) whether the Commissioner applied the correct legal standards. 42 U.S.C. §§ 405(g), 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 390, 401 (1971). “Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' ” Smith v. Heckler, 782 F.2d 1176, 1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401). Substantial evidence is defined as “more than a mere scintilla but less than a preponderance.” Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996).

         The court may not re-weigh evidence, make credibility determinations, or substitute its own judgment for the Commissioner's, so long as the decision is supported by substantial evidence. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). It is the duty of the Commissioner, not the courts, to make findings of fact and resolve conflicts in the evidence. Id. If the decision is supported by substantial evidence, the reviewing court must affirm, even if it would have decided the case differently. Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (“Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].”).

         II. Relevant Statutory Law

         The SSA provides that disability benefits are available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are disabled within the meaning of the statute. 42 U.S.C. § 423(a). The claimant must produce evidence and prove that he is disabled under the SSA, § 205(g), 42 U.S.C. § 405(g). See Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981) (claimant “bears the burden of proving a disability”). Under the SSA, “disability” means 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 12 months.” 42 U.S.C. § 423(d)(1)(A).

         The Social Security regulations set forth a five-step sequential process that considers a plaintiff's age, education, and work experience in addition to the plaintiff's medical condition. 20 C.F.R. §§ 404.1520(a). To be entitled to benefits, Plaintiff “(1) must not be engaged in substantial gainful activity, i.e., currently working; and (2) must have a severe impairment that (3) meets or exceeds the listings of specified impairments, or is otherwise incapacitating to the extent that the plaintiff does not possess the residual functional capacity to (4) perform [the plaintiff's] past work or (5) any other work.” Albright v. Comm'r, 174 F.3d 473, 475 n.2 (4th Cir. 1999); Lewis v. Comm'r, 858 F.3d 858, 860-61 (4th Cir. 2017). Plaintiff bears the burden of production and persuasion through the fourth step. If Plaintiff reaches step five, the burden shifts to the government to provide evidence that other work exists in significant numbers in the national economy that the plaintiff can do. Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam).

         III. Background

         The facts have already been extensively set forth in the ALJ's decision (AR 10-18) and in the parties' briefs (DE# 13-15), and need only be summarized here. Plaintiff was born May 20, 1967 and was 44 years of age on her amended alleged disability onset date of October 1, 2011 (AR 186, 202, 223). See 20 C.F.R. § 404.1563 (defining “younger” as age 18-49). Plaintiff has a college bachelor's degree in business. (AR 15, 28). She is married, and has three children (two minor children live with her). (AR 34-35, 187). Plaintiff reports that she separated from her husband in May 2010. (AR 362). Plaintiff communicates in English, can read and write, has a driver's license, and can drive her car. (AR 226). Plaintiff has past relevant work experience (2000-2011) as a hotel reservation agent (SVP 5, classified as skilled, sedentary). (AR 29, 45, 209-221).

         Between 2009 and 2011, Plaintiff became increasingly overwhelmed by the demands of finishing her college degree, working at her hotel job, dealing with her marital separation, and caring for her children (AR 356, noting “family stressors” in 2010; AR 362, same; AR 681-99, same). Plaintiff, who had no prior history of psychiatric problems, sought treatment for depression and was started on a low dose of Prozac, which admittedly helped. (AR 34). Plaintiff completed her business degree with a 3.2 GPA and returned to work after several weeks of family leave (AR 633, 668-70, 950). She testified that the medication helped stabilize her mood (AR 34). In late 2011, Plaintiff took two months of short-term disability from her employer for a skin rash and some joint soreness (AR 29, 629-30, 633, 644, 648-49). Although her symptoms had quickly improved with medication, Plaintiff resigned from her job on December 28, 2011 and filed for DIB benefits (AR 30, 51, 186, 224, 227). Her claim was denied in 2013, and Plaintiff did not appeal such decision. Plaintiff subsequently filed a second claim for both DIB and SSI in May 2014 (AR 186, 202).

         For her 2014 applications, Plaintiff submitted “Adult Function Reports.” (AR 236-240, 302-06, 309-16). She reported that her daily activities include showering, getting her children ready for school, walking them ten minutes to the bus stop, attending school functions (such as PTA meetings), cooking three meals daily (for 30-60 minutes), walking 15 minutes for exercise, talking on the phone for up to an hour, using the internet, reading, watching television, doing household chores (including making beds, ironing, laundry, and washing dishes), attending church twice a week, taking a Bible study class, shopping, feeding the dog, helping her children with their homework, and getting them ready for bed (AR 35-36, 39, 91, 236-240, 302-06, 309-16). She indicates she is able to pay bills, count change, and use a checkbook. (AR 314). She is able to feed herself and take care of her own hygiene. (AR 91, 302). In January of 2015, Plaintiff and her two minor children moved in with her sister. (AR 43-44). She testified that her sister now takes care of most of the cleaning and cooking. (AR 34).

         Plaintiff's 2014 applications for DIB and SSI benefits were denied initially and on reconsideration. (AR 1-3, 194, 227). Upon request, Administrative Law Judge Nicole S. Forbes- Schmitt (“ALJ”) held a hearing on July 23, 2015, at which Plaintiff (represented by counsel), Plaintiff's sister, and vocational expert Tonetta Watson-Coleman (“VE”) testified. (AR 24-49). In response to the hypothetical question posed by the ALJ, the VE testified that Plaintiff could perform her past work as a hotel reservation agent. (AR 45-46). On September 17, 2015, the ALJ issued a decision, finding that Plaintiff was not disabled from the alleged onset date through the date of decision. The Appeals Council denied Plaintiff's request for review. The ALJ's decision is the Commissioner's final decision.

         IV. Summary of ALJ's Decision

         The ALJ discussed the Plaintiff's medical treatment history (AR 14-17).[1] The ALJ considered the medical records and/or opinions, of various medical providers and consulting examiners, including Dr. Calvin J. Bosman, M.D.; Dr. Clive Brock, M.D.; Dr. Richard Marchell, M.D.; Dr. Vanessa Diaz, M.D., Dr. Cashton Spivey Ph.D., and the state agency reviewers Dr. Lisa Clausen, PhD., Lee Coleman, PhD., and Dr. George Walker, M.D. (AR 22, listing Exs. HO1F through HO14F).

         In September 2011, Plaintiff went to dermatologist Dr. Marchell regarding a scalp rash (“possible ringworm”). (AR 647). She denied any significant medical history at that time. (Id.).[2]Dr. Marchell noted some “eczematous changes” but “no arthritis.” He ordered a skin biopsy and referred her to MUSC. The ALJ observed that subsequent diagnostic testing, including x-rays, revealed no evidence of arthritis, but Plaintiff's ANA test was “highly positive.” (AR 15, citing Ex. 3F; AR 529, 633, 635, 647-48, 875-76).[3] Plaintiff's biopsy was reportedly consistent with lupus (AR 541, 630, 635, 648).[4] Dr. Marchell started Plaintiff on a new medication, and after two weeks, she reported feeling “a lot better” (AR 644).

         The ALJ then considered the Plaintiff's limited medical history from 2012-2013. Plaintiff was treated for pleurisy in March 2012. (AR 15). She had no swollen or tender joints at that time. (Id.). Plaintiff was not seen again until one year later in March 2013, at which time she complained of problems, such as joint pain, blurry vision, and depression. (AR 16). Although she complained of rash, doctors noted her hair was growing back. In February 2014, Plaintiff reported that she was briefly hospitalized for treatment for an edematous (“swollen”) left foot. (AR 16). Plaintiff also developed a “pseudo aneurysm” in her right arm, caused by an attempt “to start an IV in patient's right arm without success.” (AR 553). This was surgically repaired on April 3, 2014. (AR 555). Plaintiff subsequently reported that her arm had improved significantly and that she was exercising it. (Id.).[5] Medical notes from MUSC on May 7, 2014 indicate a “primary diagnosis” of Vitamin D deficiency and lupus. (AR 529-30). The medication “hydroxychloroquine” was prescribed. (Id., indicating that is “typically very well tolerated and serious side effects are rare”).[6] In June of 2014, Plaintiff was evaluated for complaints about her left foot. (AR 16). Physical examination, including x-rays, revealed some diffuse swelling and “mild tenderness” of her left foot, but that she had “full active range of motion” and no evidence of any arthritis, fracture, dislocation, or other osseous abnormality. (Id.). “Pes planovalgus” (i.e. flat foot) was noted.[7] Medical notes indicate that Plaintiff was taking no pain medication for her alleged foot pain. (AR 451, 567).

         The ALJ observed that in August 2014, Plaintiff went to a new primary care physician, Dr. Vanessa Diaz. Upon examination, Dr. Diaz observed that Plaintiff's lupus was “asymptomatic” with no concerns with adherence to medication and that Plaintiff's gout was controlled with medication. (AR 16). In September 2014, Dr. Diaz saw Plaintiff again and noted that Plaintiff's vertigo was improved, that her depression was stable with medication, and that Plaintiff appeared well and in no distress. (Id.). She indicated Plaintiff was oriented 3x, with intact recent and remote memory, judgment, and insight. (Id.).

         After reviewing all the medical evidence, the ALJ determined that Plaintiff's “systemic lupus erythematosus, gout, and pseudo aneurysm of the right upper extremity” were severe impairments for purposes of the SSA. The ALJ found some other alleged impairments to be non-severe, including dermatitis, breast cyst, cervical dysplasia, vitamin D deficiency, alopecia, and vertigo.[8] The ALJ explained that medical records showed these alleged impairments had been treated and resolved, or were effectively controlled with medication. (AR 12-13). The ALJ also found that Plaintiff did not have a severe mental impairment, specifically pointing out that Plaintiff herself had denied any functional limitation. (AR 13). The ALJ found that Plaintiff's impairments, either singly or in combination, were not of listing-level severity. (AR 12-14, Findings 3, 4). See 20 C.F.R. Pt. 404, Subpt. P, App. 1; 20 C.F.R. §§ 404.1520(d), 1525, 1526.

         The ALJ determined that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that Plaintiff's statements about the intensity, persistence, and limiting effects of her symptoms were “not entirely credible.” (AR 16). The ALJ considered the record as a whole, including the medical evidence, opinion evidence regarding Plaintiff's functional abilities, and Plaintiff's reported ...


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