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 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
plaintiff filed an application for disability insurance
benefits (“DIB”) on December 8, 2013, alleging
that she became unable to work on November 22, 2013. The
application was denied initially and on reconsideration by
the Social Security Administration. On August 7, 2014, the
plaintiff requested a hearing. While this claim was pending,
in May 2016, the plaintiff filed an application for disabled
widow's benefits under Title II of the Social Security
Act on the record of the deceased wage earner, Donald P.
Lucado, Sr., which was elevated to the hearing level. The
administrative law judge (“ALJ”), before whom the
plaintiff and Robert E. Brabham Sr., an impartial vocational
expert, appeared on July 26, 2016, considered the case de
novo and, on August 24, 2016, found that the plaintiff
was not under a disability as defined in the Social Security
Act (Tr. 12-26). 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 19, 2017 (Tr. 1-4). The plaintiff then filed this
action for judicial review.
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 December 31, 2018.
(2) It was previously found that the claimant is the
unmarried widow of the deceased insured worker and has
attained the age of 50. The claimant met the non-disability
requirements for disabled widow's benefits set forth in
section 202(e) of the Social Security Act.
(3) The prescribed period ends on December 31, 2017
(4) The claimant has not engaged in substantial gainful
activity since November 22, 2013, the alleged onset date (20
C.F.R. § 404.1571 et seq).
(5) The claimant had the following severe impairments:
degenerative disc disease of the lumbar spine with lumbago
and right lateral epicondylitis (20 C.F.R. §
(6) 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,
(7) After careful consideration of the entire record, I find
that the claimant has the residual functional capacity to
perform less than the full range of light work as defined in
20 C.F.R. § 404.1567(b) except the claimant could lift,
carry, push, pull 20 pounds occasionally and ten pounds
frequently; stand and/or walk two hours in and eight-hour
workday; sit for six hours in an eight-hour workday. She
requires use of a cane for ambulation with no walking on
uneven terrain; and requires a sit/stand option at the
workstation approximately every 30-45 minutes. The claimant
could frequently use right upper extremity for operation of
hand controls and should not use her bilateral lower
extremities for foot controls. The claimant could
occasionally balance, stoop, kneel, crouch, crawl, or climb
ramps/stairs, but should never climb ladders, ropes or
scaffolds. The claimant could occasionally be exposed to
unprotected heights, moving machinery, vibrations, and
operating a motor vehicle.
(8) The claimant is capable of performing past relevant work
as a dispatcher. 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).
(9) The claimant has not been under a disability, as defined
in the Social Security Act, from November 22, 2013, through
the date of this decision (20 C.F.R. § 404.1520(g)).
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), 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. If an
individual is found not disabled at any step, further inquiry
is unnecessary. Id. § 404.1520(a)(4).
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 55 years old on her alleged disability onset
date (November 22, 2013) and 58 years old at the time of the
ALJ's decision (August 24, 2016). She has a high school
equivalency education and past relevant work as a dispatcher
and a customer service representative (Tr. 25, 42).
August 1997, Bernard Kirol, M.D., performed a hemilaminectomy
and microdiscectomy, left L4-5, on the plaintiff (Tr 257).
18, 2013, the plaintiff visited Leopoldo Muniz, M.D., for a
chronic low back pain complaint. On examination, the
plaintiff had lumbar tenderness, a positive straight leg
raise test, and decreased lower extremity reflexes and
strength. Dr. Muniz diagnosed her with chronic back pain,
status-post two low back surgeries, fatigue, and anxiety (Tr.
November 4, 2013, Ty W. Carter, M.D., evaluated the plaintiff
and noted that she had a long history of back problems. The
plaintiff had done well from a nerve standpoint following her
surgery, but she had chronic low back pain. She reported
having flares about once a month that lasted two to three
days. She also reported that her pain had worsened recently.
She indicated that her pain was in her left low back and
radiated slightly into her buttock area. On examination, the
plaintiff had left paraspinal tenderness and sacroiliac
tenderness in the muscle area. She had no midline lumbar
spine tenderness. She had negative straight leg raise
bilaterally and could rise from a sitting position without
difficulty. She had good strength, sensation, and reflexes of
all motor areas and dermatomes in her lower extremity. Dr.
Carter took x-rays that showed degenerative disc disease and
narrowing at L4-L5 and LS-S1 as well as facet joint
spondylitic changes at L4-L5 and LS-S1. Dr. Carter diagnosed
lumbar degenerative disc disease at L4-L5 and L5-S1 status
post remote discectomy and lumbar strain. Dr. Carter ordered
an MRI (Tr. 275).
November 8, 2013, the plaintiff had a lumbar MRI that showed
a left paracentral disc extrusion at L4-5 with an extruded
disc compressing the transiting left L5 nerve root in the
lateral recess, minimal right lateral recess narrowing at
L4-5, minimal bilateral foraminal narrowing at L4-5 and
L5-S1, a small protrusion at L5-S1 also approximating the
transiting S1 nerve roots, and post-surgical changes at L4-5
November 12, 2013, Dr. Carter evaluated the plaintiff and
reviewed her MRI results. The plaintiff did not want to
continue conservative treatment since she had been through
that in the past without relief. Dr. Carter noted that the
plaintiff did have quite a bit of back pain and leg symptoms.
He explained that a discectomy would definitely help her leg
symptoms, but he felt that a simple discectomy was not really
going to help her back pain with the severe collapse that she
had. He recommended a posterior spinal fusion and
instrumentation to remove the disc, take the arthritic joints