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Taylor v. Berryhill

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

August 9, 2018

Fort Taylor, Jr., 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 his 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 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 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 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 seq.).
(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, 416.964).
(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. §§ 404.1520(g), 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. § 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 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).

         On 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. 280-92).

         On 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).

         On 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, 308, 325).

         On 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 (Tr. 324-29).

         On May 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).

         On July 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 ...


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