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King v. Berryhill

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

March 15, 2018

Patricia Ann King, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald United States Magistrate Judge.

         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 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.

         ADMINISTRATIVE PROCEEDINGS

         The 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.

         In 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, and 404.1526).
(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 404.1569(a)).
(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 404.1566).
(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. § 404.1520(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.

         APPLICABLE LAW

         Under 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. § 404.1505(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. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(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 supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

         EVIDENCE PRESENTED

         On the 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).

         On 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. 317-18).

         When 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).

         On 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).

         The 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).

         On 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).

         On 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. 350-52).

         On 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. 395. 397).

         The 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).

         Dr. 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).

         The 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).

         By 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).

         An MRI 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 ...


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