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Lucado v. Berryhill

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

October 16, 2018

Betty Lynn Lucado, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.



         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.


         The 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.

         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 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. § 404.1520(c)).
(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, 404.1526).
(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)).

         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.


         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).


         The 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).

         In August 1997, Bernard Kirol, M.D., performed a hemilaminectomy and microdiscectomy, left L4-5, on the plaintiff (Tr 257).

         On June 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. 306-07).

         On 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).

         On 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 (Tr. 273-74).

         On 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 ...

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