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Frankum v. Berryhill

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

May 1, 2018

Dana Frankum, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.


          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.


         The plaintiff filed an application for supplemental security income (“SSI”) benefits on October 21, 2013, alleging disability since June 21, 2013. The application was denied initially and on reconsideration by the Social Security Administration. On August 18, 2014, the plaintiff requested a hearing. The administrative law judge (“ALJ”), before whom the plaintiff and Carroll H. Crawford, an impartial vocational expert, appeared on March 1, 2016, considered the case de novo, and on March 22, 2016, 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 February 27, 2017. 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 October 21, 2013, the application date (20 C.F.R. § 416.971 et. seq.).
(2) The claimant has the following severe impairments: history of syncope, anxiety, depression, and panic disorder with agoraphobia (20 C.F.R. § 416.920(c)).
(3) The claimant also has the following non-severe impairments: back and neck pain, joint pain, gastroesophageal reflux disease (GERD) and obstructive sleep apnea (OSA) (20 C.F.R. § 416.921).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals 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, 416.926).
(5) After careful consideration of the entire record, the undersigned finds that claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: He can never climb ladders, ropes, and scaffolds, and he must avoid even moderate exposure to hazards. He can perform simple, routine tasks for two hours at a time; in a work environment free of fast paced production requirements; involving only simple, work-related decisions; with few, if any, work place changes. He can have no interaction with the public and is limited to occasional interaction with co-workers and no tandem tasks.
(6) The claimant has no past relevant work (20 C.F.R. § 416.965).
(7) The claimant was born on July 14, 1974, and was 39 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 C.F.R. § 416.963).
(8) The claimant has a limited education and is able to communicate in English (20 C.F.R. § 416.964)
(9) Transferability of job skills is not an issue because the claimant does not have past relevant work (20 C.F.R. § 416.968(a)).
(10) 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)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, since October 21, 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.


         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 Before the ALJ

         The plaintiff was 38 years old on his alleged disability onset date (June 21, 2013) and 41 years old on the date of the ALJ's decision (March 22, 2016). He has an eighth grade education and worked in the past as a cook, laborer, and stocker, all more than 15 years before he applied for benefits (Tr. 48, 61, 72, 216-24); accordingly, he has no past relevant work as defined in the regulations (Tr. 48). See 20 C.F. R. § 416.965(a).

         On November 8, 2012, the plaintiff was treated in the AnMed Health Emergency Room (“ER”) in Anderson, South Carolina, following a car accident. He had neck and lower back pain from the accident and was diagnosed with cervical strain (Tr. 327-29).

         On December 26, 2012, the plaintiff was evaluated in the ER for complaints of neck, shoulder, and back pain following another car accident. The plaintiff reported that his head rocked back and forth and then he became dizzy and lightheaded. He was diagnosed with cervical and muscle strain and prescribed Ultram and Parafon Forte. The plaintiff noted that his discomfort had not improved, and he ...

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