United States District Court, D. South Carolina, Greenville Division
REPORT OF MAGISTRATE JUDGE
F. McDonald United States Magistrate Judge.
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). The plaintiff brought this action pursuant
to Section 205(g) of the Social Security Act, as amended (42
U.S.C. 405(g)) to obtain judicial review of a partially
favorable decision of the Commissioner of Social Security
finding her disabled as of January 21, 2015, but not before,
under Title II of the Social Security Act.
plaintiff filed an application for disability insurance
benefits (“DIB”) on October 16, 2012, alleging
that she became unable to work on December 31, 2011. The
application was denied initially and on reconsideration by
the Social Security Administration. On June 28, 2013, the
plaintiff requested a hearing. The administrative law judge
(“ALJ”), before whom the plaintiff and Robert E.
Brabham, Sr., an impartial vocational expert, appeared at a
video hearing on April 28, 2015, considered the case de
novo and, on September 4, 2015, issued a partially
favorable decision finding that the plaintiff was disabled as
defined in the Social Security Act, as amended, as of January
21, 2015, but not before. 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 December 5, 2016. The plaintiff then filed this
action for judicial review.
making the foregoing determination, 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, 2015.
(2) The claimant has not engaged in substantial gainful
activity since the alleged onset date (20 C.F.R. §
404.1571 et seq).
(3) Since the alleged onset date of disability, December 31,
2011, the claimant has had the following severe impairments:
cervical degenerative disc disease, cervical dystonia, and
lumbar degenerative disc disease (20 C.F.R. §
404.1520(c)). The claimant has the following
“non-severe” impairment: osteopenia.
(4) Since the alleged onset date of disability, December 31,
2011, the claimant has not had an impairment or combination
of impairments that met or medically equaled 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,
(5) After careful consideration of the entire record, I find
that, prior to January 21, 2015, the date the claimant became
disabled, the claimant had the residual functional capacity
to perform medium work as defined in 20 C.F.R. 404.1567(c).
The claimant can lift or carry 50 pounds occasionally and 25
pounds frequently, and she can sit, stand, or walk for six
hours, each, of an eight-hour workday. Crawling would be
occasional; ropes, ladders or scaffolds would be occasional;
overhead reaching would be occasional. Frequent climbing,
stooping, kneeling, and crouching. This claimant could not be
involved in a job that required talking as the primary
component, such as telephone solicitor or a salesman.
Communication and talking would be limited to occasional; it
is not the primary component.
(6) After careful consideration of the entire record, I find
that beginning on January 21, 2015, the claimant had the
residual functional capacity to perform medium work as
defined in 20 C.F.R. 404.1567(c). The claimant can lift or
carry 50 pounds occasionally and 25 pounds frequently, and
she can sit, stand, or walk for six hours, each, of an
eight-hour workday. Crawling would be occasional; ropes,
ladders, or scaffolds would be occasional; overhead reaching
would be occasional. Frequent climbing, stooping, kneeling,
and crouching. This claimant could not be involved in a job
that required talking as the primary component, such as
telephone solicitor or a salesman. Communication and talking
would be limited to occasional; it is not the primary
component. The individual would have absences from the work
station on a daily basis at the discretion of the individual
who may have pain and an inability to concentrate that would
take the person off task for minutes one day and multiple
hours another day.
(7) Since December 31, 2011, the claimant has been unable to
perform any past relevant work (20 C.F.R. § 404.1565).
(8) Prior to the established disability onset date, the
claimant was an individual of advanced age. Since the
established disability onset date, the claimant's age
category has changed to an individual closely approaching
retirement age (20 C.F.R. § 404.1563).
(9) The claimant has at least a high school education and is
able to communicate in English (20 C.F.R. § 404.1564).
(10) Prior to January 21, 2015, transferability of job skills
is not material to the determination of disability because
using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled”
whether or not the claimant has transferable job skills.
Beginning on January 21, 2015, the claimant has not been able
to transfer job skills to other occupations (See SSR 82-41
and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(11) Prior to January 21, 2015, considering the
claimant's age, education, work experience, and residual
functional capacity, there were jobs that exist in
significant numbers in the national economy that the claimant
could have performed (20 C.F.R. §§ 404.1569 and
(12) Beginning on January 21, 2015, considering the
claimant's age, education, work experience, and residual
functional capacity, there are no jobs that exist in
significant numbers in the national economy that the claimant
can perform (20 C.F.R. §§ 404.1560(c) and
(13) The claimant was not disabled prior to January 21, 2015,
but became disabled on that date and has continued to be
disabled through the date of this decision (20 C.F.R. §
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.
42 U.S.C. § 423(d)(1)(A), (d)(5), 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. §
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. If an
individual is found not disabled at any step, further inquiry
is unnecessary. Id. § 404.1520(a)(4).
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.
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 supported by substantial evidence.
Blalock v. Richardson, 483 F.2d 773, 775
(4th Cir. 1972).
plaintiff's alleged onset date of disability, December
31, 2011, she was 58 years old. She was 62 years old on the
date of the ALJ's decision. She has a bachelor's
degree in education and past relevant work as a substitute
teacher/ teacher's aid (Tr. 26, 43). The plaintiff is 5
foot 5 inches tall and, at the time of the hearing, weighed
93 pounds. Her body mass index (“BMI”) is 15.87.
The plaintiff was involved in a water skiing accident around
1987 when she was hit in the throat by another skier's
ski. As a result of the accident, the plaintiff developed
torticollis, a movement disorder of the neck, that led to a
speaking condition called dysphonia. Alan Freeman, M.D., a
neurologist, has treated the plaintiff since that time with
myobloc and Botox injections at the Emory Clinic in Atlanta,
Georgia (Tr. 370).
October 28, 2010, Bryn K. Olson, SLP, a speech pathologist at
Emory, noted that the plaintiff had significant improvement
in her vocal quality with injection treatments; however, with
continued treatments, deterioration was expected. She also
noted that the plaintiff perceived that her voice impairment
had a moderate impact on the quality of her life (Tr.
the plaintiff was seen at the Emory Clinic on January 27,
2011, it was noted that her last injection helped only
moderately with the pulling and pain in her neck for two and
a half months. The exam showed rotation torticollis to the
right (Tr. 315). Throughout the remainder of 2011, the
plaintiff continued to work part-time and presented at Emory
for injection treatments on five more occasions with Dr.
Freeman and Michael M. Johns, III, M.D. Neither Dr. Freeman
nor Dr. Johns assessed the severity of the plaintiff's
voice or neck impairment. Simultaneous to her injection
sessions, the plaintiff also saw the attending speech
pathologist, who noted that the plaintiff consistently
perceived her voice deficit to have moderate impact on her
quality of life (Tr. 308-10, 320, 322, 324, 326-27).
October 25, 2011, the plaintiff saw Robert F. Goodlett, M.D.,
her gynecologist, who noted a normal physical examination
with complaints of only intermittent mild back pain. The
plaintiff initially declined medication for osteoporosis but
started Prolia in April 2012 (Tr. 281-93, 301).
plaintiff saw Scott Coley, M.D., her primary care physician,
on January 11, 2012, for a sore throat from a pill getting
lodged in her throat. Dr. Coley noted the plaintiff was
getting infusions of Boniva to treat osteoporosis. Dr. Coley
also noted the plaintiff was hoarse. His impressions were
dysphagia (difficulty or discomfort with swallowing as a
symptom of disease), weight loss, acute bronchitis, and
torticollis. The plaintiff reported that she did not think
that she was able to continue substitute teaching because she
was experiencing vocal “issues more and more.”
Dr. Coley noted that she was whispering. He advised the
plaintiff to follow up with a specialist for treatment of her
torticollis (Tr. 271-73).
February 2, May 3, August 16, and November 15, 2012, the
plaintiff had Botox injection treatments at Emory. Neither
Dr. Freeman nor Dr. Johns assessed the severity of the
plaintiff 's voice or neck impairment. The attending
speech pathologist also continued to note that the plaintiff
perceived her voice deficit had a moderate impact on her
quality of life (Tr. 305-07, 311, 329, 331).
January 21, 2013, Jamie Kilcoyne, FNP-BC, noted that the
plaintiff had lost her voice and presented with hoarseness,
watery eyes, cough, and pain in her back on the left side.
Ms. Kilcoyne's diagnosis was acute bronchitis (Tr.
February 21 and June 6, 2013, the plaintiff received Botox
injections for her neck. During the June 6 appointment, the
plaintiff's speech pathologist noted that the plaintiff
now perceived that her voice deficit had a
“profound” effect on her quality of life (Tr.
plaintiff saw Dr. Coley again on August 28, 2013. The doctor
noted that the plaintiff spoke in a low voice due to her
dysphonia. He noted that stress made her neck worse as well
as her voice. Dr. Coley indicated that the plaintiff was
always fighting the muscles in her neck to keep them from
turning her head. He reflected a history of bulging disc in
the plaintiff's back as well as her being underweight.
The plaintiff weighed 93 pounds. Dr. Coley's impressions
were dystonia, dysphonia, allergic rhinitis, and
osteoporosis. Dr. Coley noted that the plaintiff had no
energy and that she needed more rest as stress aggravated her
neck. Dr. Coley also noted that the plaintiff was having a
“rough time” as she was “back in
court” due to problems with her alimony and health
insurance. Dr. Coley further noted that the plaintiff had
become immune to Botox injections as expected. He advised her
to continue the injections every three months (Tr. 408-10).
Coley also completed a Clinical Assessment of Pain on August
28, 2013. He opined that the plaintiff's pain was
profound and intractable, in that it virtually incapacitated
her. Dr. Coley also opined that greatly increased pain was
likely to occur with physical activity, such as walking,
standing, bending, stooping, moving of extremities, etc., to
such a degree as to cause distraction from the task or even
total abandonment. With regard to the extent of the
plaintiff's pain and/or prescribed medications affecting
her ability to perform work activities, Dr. Coley opined that
the plaintiff would be totally restricted and thus unable to
function at a productive level of work. Dr. Coley further
opined that little improvement was likely in this case and
that the plaintiff's pain was likely to increase with
time. He noted that the plaintiff was getting injections
quarterly, but it did not improve her condition long term.
Additionally, Dr. Coley completed a Physical Capacities
Evaluation on this date. He indicated that in an eight-hour
day, the plaintiff could only sit for one hour, stand for one
hour, and walk for one hour. He noted she was never to
lift/carry any weight. He opined that the plaintiff could not
use either of her hands for repetitive actions, such as
simple grasping or pushing/pulling of arm controls. Dr. Coley
further opined that the plaintiff was not at all able to
bend, squat, crawl, climb, or reach. In addition, Dr. Coley
noted the plaintiff had total restriction of activities
involving unprotected heights, being around moving machinery,
and exposure to dust, fumes and gases. He further indicated
she had moderate restriction of activities involving exposure
to marked changes in temperature and humidity as well as
driving automotive equipment. Dr. Coley further reflected the
plaintiff had allergic rhinitis and allergies as well as
dystonia and dysphonia with a bulging disc in her lumbar
spine (Tr. 368-69).
plaintiff had injection treatments on May 8, August 7, and
November 13, 2014. Dr. Johns noted that the plaintiff's
cervical dystonia had recently worsened because she was not
able to get myobloc injections for insurance reasons. The
impression was dysphonia related to her cervical torticollis
and resonance from pharyngeal compression. Dr. Johns also
noted that the plaintiff was otherwise healthy and had no
complaints. Specifically, the plaintiff had intact head and
neck muscle strength. Dr. Johns advised the plaintiff to get
Botox injections in her larynx (Tr. 377-78, 391-92, 394).
January 13, 2015, Dr. Coley saw the plaintiff once again for
her neck pain and spasms that rendered her unable to drive.
He reflected that she was having obvious difficulty speaking
and turning her head and that she was very thin. The
plaintiff reportedly had tried to lift her mother and
experienced arm pain ever since. Dr. Coley found no focal
deficits, normal bilateral grip strength, with an
unquantified decrease in range of motion of the neck,
including some tenderness and muscle spasm. Dr. Coley advised
that the plaintiff may need more physical therapy. Dr. Coley
noted that the plaintiff had seen “Dr. Flandry”
for a bulging disc in her lumbar spine, for which she
participated in physical therapy. In 2010, the plaintiff had
an x-ray of her lumbar spine that showed “mild”
narrowing at ¶ 4-5 and L5-S1 (Tr. 279, 400-02).
was ordered of the cervical spine and performed on January
21, 2015. The impressions were multilevel degenerative disc
disease with advanced changes at the C4-5 and C5-6 along with
multilevel acquired spinal encroachment with abutment and
impression of the anterior marginal of the ...