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Gunter v. Berryhill

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

September 14, 2018

Janice Parsons Gunter, 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 Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)) to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for disability insurance benefits under Title II of the Social Security Act.

         ADMINISTRATIVE PROCEEDINGS

         The plaintiff filed an application for disability insurance benefits (“DIB”) on September 11, 2013, alleging that she became unable to work on May 1, 2012. The application was denied initially and on reconsideration by the Social Security Administration. On August 5, 2014, the plaintiff requested a hearing. The administrative law judge (“ALJ”), before whom the plaintiff and Thomas C. Neil, an impartial vocational expert, [2] appeared via a video hearing on March 15, 2016, considered the case de novo and, on May 4, 2016, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 26-44). 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 2, 2017 (Tr. 1-4). 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 on March 31, 2017.
(2) The claimant has not engaged in substantial gainful activity since May 1, 2012, the alleged onset date (20 C.F.R. § 404.1571 et seq).
(3) The claimant has the following severe impairments: cervical spondylosis and history of right shoulder impingement (20 C.F.R. § 404.1520(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, 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 C.F.R. § 404.1567(c) except that she cannot climb ladders, ropes, or scaffolds; she can occasionally reach overhead with the right arm; and she must avoid working at unprotected heights or around hazardous machinery.
(6) The claimant is capable of performing past relevant work as a school bus driver, teacher aide, office clerk, and receptionist. This work does not require performance of work-related activities precluded by the claimant's residual functional capacity (20 C.F.R. § 404.1565).
(7) The claimant was not under a disability, as defined in the Social Security Act, from May 1, 2012, through the date of this decision (20 C.F.R. § 404.1520(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), 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).

         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. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(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 35 years old on her alleged disability onset date (May 1, 2012) and 39 years old at the time of the ALJ's decision (May 4, 2016). She has a high school education and past relevant work as a school bus driver, teacher aide, office clerk, and receptionist (Tr. 42-43).

         On July 24, 2009, the plaintiff saw her primary care physician, Daniel E. DeCamps, M.D., at Pee Dee Family Practice for headaches. She was unable to sleep, her arms and legs ached, and she could not get comfortable. On examination, her blood pressure was slightly elevated, and she had some tenderness in her trapezius muscles. She had full range of motion of her neck (Tr. 354). She returned for a three week followup on August 7, 2009, with complaints of headaches and spasms in her trapezius muscles (Tr. 353).

         On March 10, 2010, the plaintiff saw Dr. DeCamps for headaches and neck pain. She had full range of motion of her neck with some tenderness. Her trapezius muscles had some spasm. Dr. DeCamps assessed her with neck pain with radiculopathy and headache (Tr. 352). An MRI taken on March 12, 2010, was normal (Tr. 350). On June 2 and 9, 2010, the plaintiff was seen for diffuse muscle aches and pains, and fibromyalgia symptoms due to myofascial trigger points. She was assessed with sinusitis and cervical muscle spasms (Tr. 348-49). On September 23, 2010, she was seen for evaluation and followup of supraventricular tachycardia (“SVT”). Examination was unremarkable, and she was assessed with SVT, frontal headaches, and photophobia (Tr. 345). She returned on September 24th with severe headaches and elevated blood pressure. Dr. DeCamps started her on Nadalol to lower her blood pressure and prevent headaches (Tr. 344). On October 1 and 15, 2010, she had continued headaches, myofascial trigger points in her back, insomnia, tachycardia, fatigue, muscle aches, muscle spasms, and obstipative type symptoms. Restoril helped her sleep significantly, and Meloxicam helped with a lot of her aching and soreness. Dr. DeCamps prescribed Amitiza for the obstipation. He wrote to keep her out of work until further notice (Tr. 341-42).

         On April 8, 2011, the plaintiff saw Dr. DeCamps for follow up of cervical strain/neck pain and shoulder discomfort. On examination, she had diffuse tenderness in the shoulder area and in the suprascapular area. She had no myofascial trigger point. She had low back pain down to the trochanteric bursa area and down the side of her leg. Physical therapy was ordered (Tr. 340). On April 20, 2011, she had no improvement with cervical and lumbar pain. She could not get comfortable at night to sleep and felt as if her medicines were not helping anymore. On examination, she had some cervical tenderness, increased muscle tone to palpation extending into the suprascapular area, right worse than left. She continued to have some right paralumbar tenderness extending into the right trochanteric area with some pain over the right trochanteric bursa to palpation (Tr. 339). On May 4, 2011, the plaintiff's cervical and lumbar pain were worse after physical therapy, and she still had knots in her neck. Examination showed continued mild cervical and lumbar tenderness to palpation, paracervical nodularity, possibly myofascial trigger points, some paralumbar tenderness to palpation, and increased muscle tone (Tr. 338).

         On May 18, 2011, the plaintiff reported to Dr. DeCamps that her condition was the same. She had numbness and discomfort in her right shoulder, left suprascapular pain, and pain due to overuse of her left hand because she could not use her right hand. Examination revealed suprascapular myofascial trigger points, tenderness in right and left suprascapula, and tenderness in cervical area (Tr. 337). On June 22, 2011, in a followup for cervical sprain, the plaintiff reported that physical therapy helped. She was pain free for a couple of hours or a day. ...


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