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Hackett v. Berryhill

United States District Court, D. South Carolina

February 22, 2018

KENYA LASCENTA HACKETT, Plaintiff,
v.
NANCY A. BERRYHILL, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          REPORT AND RECOMMENDATION

          Bristow Marchant United States Magistrate Judge

         The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), (D.S.C.).

         Plaintiff applied for Disability Insurance Benefits (DIB) on August 9, 2013 (protective filing date), alleging disability as of August 7, 2013 due to seizures, severe migraines, hypertension, ankle swelling, leg cramping, back pain, her mental status/depression, and diabetes. (R.pp. 53, 55, 254-264). Plaintiffs claims were denied initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on April 5, 2016. (R.pp. 41-87). The ALJ thereafter denied Plaintiffs claims in a decision issued May 11, 2016. (R.pp. 22-33). The Appeals Council denied Plaintiffs request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-4).

         Plaintiff then filed this action in this United States District Court, asserting that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed and remanded for further consideration, or for an outright award of benefits. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.

         Scope of review

         Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:

evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is “substantial evidence.” [emphasis added].

Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also, Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Noting that the substantial evidence standard is even “less demanding than the preponderance of the evidence standard”].

         The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. “[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by ‘substantial evidence.'” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

         Background

         The record shows that Plaintiff, who was forty-three years old on her alleged disability onset date, has a high school diploma and a certified nursing assistance certificate, and past relevant work as a packer and as a certified nursing assistant for 16 years. (R.pp. 49-51, 53). In order to be considered “disabled” within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience and functional capacity, and which has lasted or could reasonably be expected to last for at least twelve (12) consecutive months.

         After a review of the evidence and testimony in this case the ALJ determined that, although Plaintiff does suffer from the “severe” impairments[1] of seizures, migraines, and an affective disorder, she nevertheless retained the residual functional capacity (RFC) to perform a full range of work at all exertional levels, restricted to not using moving machinery or having exposure to unprotected heights; simple, routine, and repetitive tasks, a work environment free of fast-paced production requirements involving only simple, work-related decisions, and with few, if any, work place changes. The ALJ also found that Plaintiff was capable of learning simple vocational tasks and completing them at an adequate pace with persistence in a vocational setting. (R.pp. 27-28). Although the ALJ found that Plaintiff could not perform her past relevant work with these limitations, he obtained testimony from a vocational expert and found at step five that Plaintiff could still perform other jobs existing in significant No. in the national economy, and was therefore not disabled during the period at issue. (R.pp. 31-32).

         Plaintiff asserts that the ALJ erred in reaching this decision by failing to ask the VE whether his testimony conflicted with the Dictionary of Occupational Titles (DOT), [2] by failing to account for time Plaintiff would be off-task in his RFC finding, by assigning Plaintiff an RFC that was inconsistent with the testimony of the VE and his very own finding that Plaintiff has a severe impairment of seizure disorder, and by failing to consider and address the reasons Plaintiff was not compliant with taking her seizure medication, including side effects and financial issues. After a careful review and consideration of the evidence and arguments presented, the undersigned is constrained to agree with the Plaintiff that the ALJ failed to properly ...


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