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Lassiter v. Berryhill

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

May 31, 2018

Patricia Ann Lassiter, 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 Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.

         ADMINISTRATIVE PROCEEDINGS

         The plaintiff filed applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) benefits on April 3, 2013. In both applications, the plaintiff alleged that she became unable to work on February 1, 2012. Both applications were denied initially and on reconsideration by the Social Security Administration. On March 17, 2014, the plaintiff requested a hearing. The administrative law judge (“ALJ”), before whom the plaintiff and Robert E. Brabham, Sr., an impartial vocational expert, appeared on May 16, 2016, at a video hearing, considered the case de novo, and on June 8, 2016, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 22-31). 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 April 27, 2017 (Tr. 1-3). 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 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 February 1, 2012, the alleged onset date (20 C.F.R §§ 404.1571 et seq., 416.971 et seq.).
(3) The claimant has the following severe impairments: high blood pressure; diabetes; status post left carotid endarterectomy; mild to moderate peripheral plaque formation right carotid artery; neuropathy; bilateral knee degenerative changes to include osteoarthritis; obesity; transient ischemic attacks; anxiety; and depression (20 C.F.R. §§ 404.1520(c), 416.920(c)).
(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. §§ 404.1520(d), 404.1525, 416.920(d), 416.925, 416.926).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) with further limitation to lifting, carrying, pushing, and pulling 20 pounds occasionally and ten pounds frequently; sitting six hours in an eight-hour workday; standing/walking six hours in an eight-hour workday; no more than frequent stooping, crouching, balancing, and climbing of stairs and ramps; no more than occasional kneeling; no crawling and climbing of ladders, ropes, or scaffolds; no limits on hearing, seeing, or speaking; can without limits reach bilaterally in all directions including overhead; no more than frequent fingering, feeling, and handling; avoid concentrated exposure to dusts, fumes, odors, gases, smoke, irritating inhalants, and areas of poor ventilation; avoid concentrated exposure to vibrations; no more than frequent use of hands and feet for the operation of controls; avoid concentrated exposure to extreme heat and cold; can work at heights and near bodies of water when protected from falls; and avoid working with or near dangerous and moving type of equipment or machinery. Claimant is further limited to performing simple, routine, repetitive job tasks; can understand, remember, and carry out job instructions related to simple, routine, repetitive job duties; can frequently accept supervision; frequently interact with co-workers and frequently interact with the general public; can work well with people and objects; can maintain attention, concentration, and pace if allowed scheduled work breaks of 15 minutes in the first half of the workday, 15 minutes break in the second half of the workday, and a 30 minutes midday break; can be punctual and work within a set schedule; requires no special supervision to complete work assignments pertaining to simple, routine, repetitive job tasks; can make work related decisions regarding simple, routine, and repetitive job assignments; can adapt to changes in job duties and work assignments if the changes are infrequent and gradually introduced; and should have no fast paced quota driven factory production line type of work assignments.
(6) The claimant is capable of performing past relevant work as a General Cashier II. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 C.F.R. §§ 404.1565, 416.965).
(7) The claimant has not been under a disability, as defined in the Social Security Act, from February 1, 2012, through the date of this decision (20 C.F.R. §§ 404.1520(f), 416.920(f)).

         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) and § 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. §§ 404.1505(a), 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. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 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 51 years old on her alleged disability onset date (February 1, 2012) and 54 years old at the time of the ALJ's decision (June 8, 2016). She completed high school and has past relevant work experience as a cashier (Tr. 30, 215).

         On March 9, 2011, the plaintiff was seen at Rural Health Services by Cherise Fretwell, M.D., for lab work and medication refills. The plaintiff had no complaints. A review of symptoms was negative. The plaintiff denied musculoskeletal symptoms, soft tissue swelling, and neurological symptoms (Tr. 322-23).

         On April 20, 2012, the plaintiff saw her primary care physician, Fredric Woriax, M.D., at Weston Community Health for hypertension, hyperlipoproteinemia, vitamin D deficiency, uncontrolled diabetes, and diabetic neuropathy. The plaintiff reported she was doing well and had no complaints. She was smoking a pack of cigarettes a day with no desire to quit. Physical examination was normal. Her motor examination showed no dysfunction. She was instructed to stop smoking (Tr. 271-74).

         On April 2, 2013, the plaintiff was seen for followup with Dr. Woriax. She complained of bilateral knee pain. Her motor examination showed no dysfunction. Dr. Woriax's assessment was hypertension, esophageal reflux, hyperlipoproteinemia, overweight, type two diabetes, and osteoarthritis of both knees. He encouraged her to stop ...


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