United States District Court, D. South Carolina, Charleston Division
Nichelle B. Aiken, Plaintiff,
Commissioner, Social Security Admin., Defendant.
REPORT AND RECOMMENDATION
Gordon Baker Judge.
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
Standard of Review
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).
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].”).
Relevant Statutory Law
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. §
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).
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).
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).
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).
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.
Summary of ALJ's Decision
discussed the Plaintiff's medical treatment history (AR
14-17). 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).
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.).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). Plaintiff's biopsy was reportedly
consistent with lupus (AR 541, 630, 635, 648). Dr. Marchell
started Plaintiff on a new medication, and after two weeks,
she reported feeling “a lot better” (AR 644).
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.). 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”). 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. Medical notes
indicate that Plaintiff was taking no pain medication for her
alleged foot pain. (AR 451, 567).
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.
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. 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.
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 ...