United States District Court, D. South Carolina
DENISE M. TORRES, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
GORDEN BAKER UNITED STATES MAGISTRATE JUDGE
Denise M. Torres, through counsel, brought this action to
obtain judicial review of an unfavorable final administrative
decision denying benefits on her September 23, 2013
applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) under the Social Security Act
(“Act”). See Section 205(g) of the SSA,
as amended, 42 U.S.C. Section 405(g). This matter was
referred to the Magistrate Judge for a Report and
Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C.,
and Title 28, United States Code, Section 636(b)(1)(B). For
the reasons stated herein, the undersigned recommends that
the Commissioner's decision be reversed and remanded for
a new hearing.
History and ALJ's Findings
Plaintiff was born May 27, 1970, and was 42 years old on the
alleged onset of disability date, January 1, 2013. (R. 245,
345.) The Plaintiff filed for DIB and SSI on September 23,
2013. (R. 245, 249.) The Plaintiff claimed disability due to
spinal arthritis, fibromyalgia, left knee injury, depression,
bulging discs in back and neck, spinal stenosis and facet
stenosis, bursitis in hips, injury to left knee, depression,
migraines, and sleep disorder. (R. 282.) The Plaintiff's
claims were initially denied and denied on reconsideration.
(R. 133-35, 162-64.) Following a hearing, the Administrative
Law Judge (“ALJ”) denied her claim on June 16,
2016. (R. 17-26.) The Plaintiff has exhausted her
administrative remedies. The ALJ's decision is now the
Commissioner's final action for purposes of judicial
review. In making the determination that the Plaintiff is not
entitled to benefits, the Commissioner adopted the following
findings of the ALJ's June 16, 2016 Decision:
(1) The claimant meets the insured status requirements of the
Social Security Act through December 31, 2013.
(2) The claimant has not engaged in substantial gainful
activity since January 1, 2013, the amended alleged onset
date (20 CFR 404.1571 et seq., and 416.971 et
(3) The claimant has the following severe impairments: lumbar
and cervical facet arthropathy, fibromyalgia, headaches,
obesity, and left knee issues/osteoarthritis (20 CFR
404.1520(c) and 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 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform sedentary work as defined in
20 CFR 404.1567(a) and 416.967(a) except the claimant can sit
for 6 hours; stand for 2 hours; walk for 2 hours; push and
pull as much as the claimant can lift/carry; occasionally use
left or right foot controls; frequent reach overhead on the
left and right side; occasionally climb ramps and stairs;
never climb ladders, ropes, or scaffolds; occasionally
balance, stoop, kneel, crouch; never crawl, never be exposed
to unprotected heights or operate a motor vehicle; must avoid
concentrated exposures to extreme heat and cold; in addition
to normal breaks would be off task 10% of time in an 8-hour
workday; would be absent from work one day a month; and would
require a brief postural change once per hour at or near the
work station up to a maximum duration of 5 minutes.
(6) The claimant is capable of performing past relevant work
as an administrative assistant. This work does not require
the performance of work-related activities precluded by the
claimant's residual functional capacity (20 CFR 404.1565
(7) The claimant has not been under a disability, as defined
in the Social Security Act, from January 1, 2013, through the
date of this decision (20 CFR 404.1520(g) and 416.920(g)).
provides that disability benefits shall be available to those
persons insured for benefits, who are not of retirement age,
who properly apply, and who are under a
“disability.” 42 U.S.C. § 423(a). The Act
also provides that SSI disability benefits shall be available
for aged, blind, or disabled persons who have income and
resources below a specific amount. See 42 U.S.C.
§ 1381 et seq. “Disability” is
defined in the Act as the inability to “engage in 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” twelve months. See 42 U.S.C. §
423(d)(1)(A) (definition used in the DIB context); 42 U.S.C.
§ 1382c(a)(3)(A) (definition used in the SSI
facilitate a uniform and efficient processing of disability
claims, the 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 which equals
an illness contained in the Administration's official
Listing of Impairments found at 20 C.F.R. Part 404, Subpart
P, Appendix 1, (4) has an impairment which prevents past
relevant work, and (5) has an impairment which prevents him
from doing substantial gainful employment. See 20
C.F.R. § 404.1520 (DIB context); 20 C.F.R. §
416.920 (SSI context). If an individual is found not disabled
at any step, further inquiry is unnecessary. See 20
C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. §
416.920(a)(4) (SSI context); see also Hall v.
Harris, 658 F.2d 260 (4th Cir. 1981).
plaintiff is not disabled within the meaning of the Act if
she can return to past relevant work as it is customarily
performed in the economy or as the claimant actually
performed the work. See SSR 82-62, 1982 WL 31386, at
*3. The plaintiff bears the burden of establishing her
inability to work within the meaning of the Act. 42 U.S.C.
§ 423(d)(5); 42 U.S.C. § 1382c(a)(3)(H)(i). She
must make a prima facie showing of disability by
showing that she is unable to return to her past ...