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Earley v. Berryhill

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

March 30, 2018

Michael Earley, 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 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying his claim for supplemental security income benefits under Title XVI of the Social Security Act.

         ADMINISTRATIVE PROCEEDINGS

         The plaintiff filed an application for supplemental security income (“SSI”) benefits on March 4, 2013, alleging disability commencing January 1, 2007. The application was denied initially and on reconsideration by the Social Security Administration. On December 24, 2013, the plaintiff requested a hearing. The administrative law judge (“ALJ”), before whom the plaintiff and Benson Hecker, an impartial vocational expert, appeared during a hearing on June 25, 2015, considered the case de novo, and on August 13, 2015, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended. 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 determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:

(1) The claimant has not engaged in substantial gainful activity since March 4, 2013, the application date (20 C.F.R. § 416.971 et. seq.)
(2) The claimant has the following severe impairments: affective disorder and history of alcohol abuse (20 C.F.R. § 416.920(c)).
(3) The claimant does not have an impairment or combination of impairments that meets or medically equals the the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926).
(4) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: work is limited to one or two-step tasks with only occasional interaction with the public.
(5) The claimant is unable to perform any past relevant work (20 C.F.R. § 416.965).
(6) The claimant was born on December 5, 1957, and was 55 years old, which is defined as an individual of advanced age, on the date the application was filed (20 C.F.R. § 416.963).
(7) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. § 416.964).
(8) 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 (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(9) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs in the national economy that the claimant can perform (20 C.F.R. § 416.969, 416.969(a)).
(10) The claimant has not been under a disability, as defined in the Social Security Act, since March 4, 2013, the date the application was filed (20 C.F.R. § 416.920(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. § 1382c(a)(3)(A), (H)(i), 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. § 416.905(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. § 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 416.920(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 is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

         EVIDENCE PRESENTED

         The plaintiff was born on December 5, 1957, and was 49 years old on the alleged onset date of disability (January 1, 2007) and 57 years old on the date of the ALJ's decision (August 13, 2015). The plaintiff has an associate's degree from Spartanburg Methodist College and past relevant work as an electrician and an assembler (Tr. 23, 37, 39).

         On April 4, 2012, the plaintiff was treated in the emergency room for complaints of chest pain. The plaintiff appeared to be in moderate distress. He was diagnosed with rib fractures and prescribed Lortab for pain (Tr. 254-61).

         On August 7, 2012, a nurse practitioner at New Horizon Family Health Services evaluated the plaintiff to establish primary care. The examiner noted that the plaintiff had a family history of high blood pressure, osteoporosis, and neuropathy. The plaintiff admitted to smoking. He complained of vision changes, difficulty swallowing, shortness of breath, chest pain, burn/indigestion, tremors, weakness in his limbs, depressed mood, memory problems, anxiety, nervousness, joint pain, and back pain. The examiner indicated that the plaintiff had a history of concussions and had reportedly had a stroke. The plaintiff was prescribed Lyrica for neuropathy and Celexa for depression (Tr. 264-67).

         On December 29, 2012, the plaintiff was treated in the emergency room for a head laceration. He underwent numerous diagnostic tests, which showed mild degenerative changes of the cervical spine. He was diagnosed with a head trauma (Tr. 271-76).

         The plaintiff was hospitalized from February 13 through 18, 2013, for suicidal ideation. The plaintiff admitted that he had been drinking again and that he was having thoughts of jumping off of a bridge. The plaintiff reported that his medication was not keeping his anxiety under control and that he drank to dull his depression and pain. The plaintiff indicated that his thoughts of suicide worsened when he drank. The plaintiff was noted to have had multiple concussions and a history of chronic back pain, chronic headaches, chronic knee pain, chronic wrist pain, shortness of breath, and problems with his vision. During his admission, he participated in therapy and had medication adjustments. He was noted to have suffered a fall on his second to last day due to leg weakness. X-rays were taken, which showed hypertrophic spurring in all three joint compartments of his left knee and mild medial joint space narrowing compatible with osteoarthritis as well as osteochondroma arising from the lateral margin of the right iliac wing of the left hip. At the time of discharge, the plaintiff's mood was greatly improved. He continued to have mildly pressured speech but was easily interruptible and redirectable. His discharge diagnoses included major depressive disorder, recurrent, severe, without psychotic features; panic disorder; alcohol dependence; nicotine dependence; cluster C features with cluster B; osteoarthritis of the left lower extremity; degenerative disc disease; and a Global Assessment of Functioning (“GAF”) score of 20 at admission and 45-50 at discharge.[2] He was prescribed gabapentin, mirtazapine, Nicoderm patches, and Risperidone. He was advised to follow up with a mental health clinic and free medical clinic (Tr. 277-309).

         On May 13, 2013, the plaintiff had an initial mental health assessment at the Spartanburg Area Mental Health Center. The plaintiff reported having thoughts of suicide, but no intent. The plaintiff felt that he was doing better. He was noted to have a history of substance abuse and blackouts due to his substance abuse. The plaintiff reported a history of head injuries and multiple traumas and a possible stroke. He reported chronic pain in his hands and feet due to broken bones. It was noted that the plaintiff expressed that he would be compliant with treatment. The plaintiff appeared alert and oriented and was usually able to make sound decisions. The plaintiff exhibited poor immediate memory and was easily distracted. His sleeping, appetite, and energy level were all adequate. The plaintiff was diagnosed with alcohol dependence, rule out depression NOS and anxiety NOS; a short term memory impairment; history of concussions; degenerative disc disease; osteoarthritis; and a GAF score of 55.[3] The plaintiff did not begin treatment through the clinic because he was set to begin treatment through another facility, and he was advised to obtain his medications through New Horizon Family Health Services (“New Horizon”) (Tr. 310-15).

         On May 21, 2013, Marcia Hayes, a nurse practitioner at New Horizon, evaluated the plaintiff. Ms. Hayes noted that the plaintiff had been in the hospital recently and was taking Risperdal, Remeron, and gabapentin but was out of his medications. Ms. Hayes diagnosed the plaintiff with subacute sensory neuropathy and depression. She stated that he would need to see a mental health specialist for treatment of his ...


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