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Summey v. Berryhill

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

October 29, 2018

Michael Edward Summey, 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 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.


         The plaintiff filed applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) benefits on November 5, 2013. In both applications, the plaintiff alleged that he became unable to work on June 30, 2010. Both applications were denied initially and on reconsideration by the Social Security Administration. On May 9, 2014, the plaintiff requested a hearing. The administrative law judge (“ALJ”) held a hearing on March 15, 2016, at which time the ALJ continued the hearing to give the plaintiff time to hire an attorney (Tr. 70-75). On July 27, 2016, the ALJ held a second hearing where the plaintiff and Carey A. Washington, Ph.D., an impartial vocational expert, appeared (Tr. 19-44). The ALJ considered the case de novo, and on September 29, 2016, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 19-26). 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 September 14, 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 through March 31, 2016.
(2) The claimant has not engaged in substantial gainful activity since June 30, 2010, the alleged onset date (20 C.F.R §§ 404.1571 et seq. and 416.971 et seq.).
(3) The claimant has the following severe impairments: avascular necrosis of the bilateral hips, cervical and lumbar spine degenerative disc disease, rheumatoid arthritis, obesity and COPD (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, I find that the claimant has the residual functional capacity to perform light work (lift, carry, push, or pull 20 pounds occasionally and ten pounds frequently; stand or walk six hours in and eight-hour workday; and sit six hours in an eight-hour workday), as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except with the following limitations: frequently handle, finger, and reach overhead with bilateral upper extremities; occasionally climb ladder/rope/scaffolds and crawl; frequently climb ramp/stairs, balance, stoop, crouch, and kneel.
(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 May 25, 1971 and was 39 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 C.F.R. §§ 404.1563, 416.963).
(8) The claimant has at least a high school 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 June 30, 2010, 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.


         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).


         The plaintiff was 39 years old on his alleged disability onset date (June 30, 2010) and 45 years old at the time of the ALJ's decision (September 29, 2016). He has a GED and past relevant work as a sander/carver and furniture frame builder (Tr. 35).

         On June 20, 2012, the plaintiff presented to Greenwood Clinic of Chiropractic complaining of low aching back pain, which was exacerbated with movement. He rated his pain a ten out of ten on the pain scale. Upon physical examination, it was noted that the plaintiff had decreased range of motion and pain upon palpation at L1-L5. He returned over a period of four visits, receiving percussion treatments. It was ultimately noted that his pain had been decreased to a six out of ten on the pain scale (Tr. 547-50).

         On August 12, 2012, the plaintiff underwent a consultative examination performed by John Burrell, M.D. Dr. Burrell noted that the plaintiff 's primary complaint was pain and cramping in his hands. He stated that he had “trouble gripping with weakness, ” which was made “worse the more he uses it, ” and he was constantly dropping things (Tr. 429). He admitted to being a pack a day smoker for 21 years. With regard to the plaintiff's other complaints, Dr. Burrell noted:

The second complaint is right foot pain in the bottom of his foot. It is a cramping pain. It gets worse with use and walking, primarily around the heel with some radiation up to the balls of his foot. No injury. It is limited at this time and it is a sporadic problem.
He also complains of low back pain and neck pain. No radiation or radicular problems. No aggravating or relieving factors. He has gotten some relief in the past with high dose oxycodone. He has got no injuries at that time that he is aware of. He is not aware of any imaging that has been done.
He also complains of bilateral shin pain that is worse with walking. He describes it as a hardness he feels is likely secondary to muscle spasm.
He complains of bilateral shoulder pain with motion that is basically abduction above the midline. He was told at one point he had a pinched nerve. No imaging has been done. It reaches all the way to his hand. It probably started at the age of 16 when he was working as a heavy lifter for a frame shop and one day he woke up with all of ...

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