United States District Court, D. South Carolina, Greenville Division
REPORT OF MAGISTRATE JUDGE
F. MCDONALD UNITED STATES MAGISTRATE JUDGE.
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
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 his
claims for disability insurance benefits and supplemental
security income benefits under Titles II and XVI of the
Social Security Act.
plaintiff filed applications for disability insurance
benefits (“DIB”) and supplemental security income
(“SSI”) benefits on February 19, 2014. In both
applications, the plaintiff alleged that he became unable to
work on February 14, 2014. Both applications were denied
initially and on reconsideration by the Social Security
Administration. On June 25, 2014, the plaintiff requested a
hearing. The administrative law judge (“ALJ”),
before whom the plaintiff and Arthur F. Schmitt, an impartial
vocational expert, appeared on September 10, 2015, considered
the case de novo, and on November 18, 2015, found
that the plaintiff was not under a disability as defined in
the Social Security Act, as amended (Tr. 24-32). 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 June 28,
2017 (Tr. 1-6). The plaintiff then filed this action for
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 September 30, 2017.
(2) The claimant has not engaged in substantial gainful
activity since February 14, 2014, the alleged onset date (20
C.F.R §§ 404.1571 et seq., 416.971 et
(3) The claimant has the following severe impairments:
emphysema status post bilateral pneumothorax, tobacco
dependence, and lumbar osteoarthritis with mild spondylosis
(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). Specifically,
the claimant is able to lift and carry up to 20 pounds
occasionally and ten pounds frequently and stand, walk, and
sit for six hours in an eight-hour day except that the
claimant can occasionally climb ladders, ropes, or scaffolds,
and must avoid concentrated exposure to temperature extremes,
wetness, humidity, fumes, dust, chemicals, noxious odors,
poor ventilation, and hazards.
(6) The claimant is unable to perform any past relevant work
(20 C.F.R. §§ 404.1565, 416.965).
(7) The claimant was born on August 27, 1962, and was 51
years old, which is defined as an individual closely
approaching advanced age, on the alleged disability onset
date (20 C.F.R. §§ 404.1563, 416.963).
(8) The claimant has a limited education and is able to
communicate in English (20 C.F.R. §§ 404.1564,
(9) 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).
(10) Considering the claimant's age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that the claimant can perform (20 C.F.R. §§
404.1569, 404.1569(a), 416.969, 416.969(a)).
(11) The claimant has not been under a disability, as defined
in the Social Security Act, from February 14, 2014, through
the date of this decision (20 C.F.R. §§
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.
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. §§
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. §§
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.
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).
plaintiff was 51 years old on his alleged disability onset
date (February 14, 2014) and 53 years old at the time of the
ALJ's decision (November 18, 2015). He completed his
education through the eleventh grade. He had past relevant
work as a journeyman/lineman (Tr. 30, 224).
January 29, 2014, the plaintiff was seen at Trident Health
Systems for worsening back pain. He also had large
emphysematous blebs in the upper lungs (Tr. 265-74). On
February 14, 2014, he went to the emergency room with chest
pain. He was diagnosed with a large left-sided pneumothorax.
A chest tube was placed with re-expansion of the left lung.
It was noted that he had no detectable residual pneumothorax.
He denied back pain, and his back examination was normal (Tr.
February 17, 2014, the plaintiff began treatment for his
pneumothorax at Palmetto CV Thoracic Association (Tr. 320).
On February 20, 2014, he reported that his shortness of
breath was about the same as it was when he left the hospital
(Tr. 322). On February 25, 2014, Korey Plewinski, M.D.,
recommended a video-assisted thorascopic pleurodesis as the
plaintiff's chest x-ray and shortness of breath had not
changed (Tr. 323).
February 26, 2014, the plaintiff was admitted to Trident
Medical Center for a left-sided pneumothorax, which failed to
heal with a thoracostomy tube. He underwent a left
thoracoscopy wedge resection of the left upper lobe. Multiple
complex blebs were present in the upper lobe. He was
discharged on March 4, 2014, in stable condition (Tr. 295-99,
March 13, 2014, the plaintiff reported significant pain after
his pleurodesis surgery. A chest x-ray showed lobulated
layering on the left lower lobe, which might represent
layering effusion or developing scar status post pleurodesis
5, 2014, Cleve Hutson, M.D., a state agency physician,
reviewed the plaintiff's medical records and concluded
that he could perform medium work. Dr. Hutson opined that the
plaintiff could occasionally lift and/or carry 50 pounds and
frequently lift and/or carry 25 pounds. He could sit, stand,
and walk six hours in an eight-hour workday. Dr. Hutson
opined that the plaintiff could frequently climb ramps and
stairs and occasionally climb ladders, ropes, and scaffolds.
He should avoid concentrated exposure to extreme cold,
extreme heat, wetness, humidity, fumes, odors, dusts, gases,
and poor ventilation. He should avoid even moderate exposure
to hazards. Dr. Hutson wrote that the plaintiff's
allegations of shortness of breath and chest pain were
credible but were expected to improve with treatment (Tr.
64-67). On June 2, 2014, Hurley W. Knott, M.D., opined the
same (Tr. 83-86).
31, 2014, the plaintiff was seen at Sumpter Free Health
Clinic and reported that his left lung hurt when he coughed
or laughed. He could feel it “fluttering”
randomly. He had diabetes and hypertension and was obese (Tr.
397). On August 26, 2014, he reported low back pain with
radiculopathy down the left leg. Soma and hydrocodone were
prescribed (Tr. 398). On September 4, 2014, the plaintiff had
pain in his back and right leg. He said his pain medicine did
not help. He had a tender lumbosacral area and a ...