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Elmore v. Berryhill

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

November 5, 2018

Princella Elmore, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.


          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 her claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.


         The plaintiff filed an application for disability insurance benefits (“DIB”) on March 21, 2013. She also filed an application for supplemental security income (“SSI”) benefits on February 17, 2015. In both applications, the plaintiff alleged that she became unable to work on April 30, 2012. Both applications were denied initially and on reconsideration by the Social Security Administration. On July 31, 2014, the plaintiff requested a hearing. The administrative law judge (“ALJ”), before whom the plaintiff, her attorney, and William W. Stewart, Ph.D., an impartial vocational expert, appeared on July 18, 2016, at a hearing in Columbia, South Carolina, considered the case de novo, and on September 26, 2016, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 21-34). 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 July 13, 2017 (Tr. 1-3). 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 December 31, 2017.
(2) The claimant has not engaged in substantial gainful activity since April 30, 2012, the alleged onset date (20 C.F.R §§ 404.1571 et seq., 416.971 et seq.).
(3) The claimant has the following severe impairments: right cervical facet arthropathy with radiculopathy and reflex sympathetic dystrophy; cervical degenerative disc disease and spondylosis; status post right carpal tunnel syndrome release; lumbago; scoliosis; obesity; affective disorder; and somatoform disorder (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 as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except for the following limitations: no lifting or carrying over 20 pounds occasionally and ten pounds frequently; no standing or walking over six hours in an eight-hour workday; no sitting over six hours in an eight-hour workday; no more than occasional pushing or pulling with the right, dominant, upper extremity; no more than occasional climbing of ramps or stairs; no more than occasional balancing, stooping, kneeling, or crouching; no climbing of ladders, ropes, or scaffolds; no crawling; no more than frequent reaching in all directions with the right, dominant, upper extremity; no more than frequent handling with the right, dominant, hand; the avoidance of hazards such as working at unprotected heights and around moving mechanical parts; only simple and routine tasks; only work that requires concentration, persistence, and pace for two-hour periods during the day; and no more than occasional interaction with the public.
(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 February 1, 1971, and was 41 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 C.F.R. §§ 404.1563 and 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 April 30, 2012, through the date of this decision (20 C.F.R. §§ 404.1520(g) and 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 41 years old on her alleged disability onset date (April 30, 2012) and 45 years old at the time of the ALJ's decision (September 26, 2016). She completed high school and has past work experience as a machine assembler, testing operator, assembler, and quality control tester (Tr. 33, 217).

         On March 26, 2012, the plaintiff was seen at Carolina Musculoskeletal Institute (“CMI”) for an injection in her subdeltoid bursa to try to alleviate some of her pain (Tr. 315). On April 18, 2012, she had right shoulder pain, and she was wearing a sling. An MRI of her shoulder showed tendinitis, and an MRI of her neck showed minimal disc disease at ¶ 5-C6. She did not have significant relief from an epidural steroid or subdeltoid shots. Douglas D. Holford, M.D., prescribed Neurontin. On examination, she had diffuse tenderness about her shoulder (Tr. 314).

         On April 7, 2012, the plaintiff was seen at the Spine Doctors of Aiken for neck, shoulder, arm, and back pain. She was diagnosed with a hypolordosis cervical spine, foraminal encroachment of the C3/C4 joint space, scoliosis in the lumbar spine, and foraminal encroachment of the L5/S1 joint space (Tr. 354). She went to physical therapy from April 2012 to February 2013 (Tr. 355-62).

         On May 16, 2012, the plaintiff was still using a sling on her right shoulder. EMG and nerve conduction studies showed mild carpal tunnel syndrome, which “is not causing [the plaintiff] any discomfort.” Dr. Holford recommended epidural steroids (Tr. 313). On June 25, 2012, the plaintiff had not yet been approved for epidural steroids. Dr. Holford wrote that it was time to get the plaintiff out of her sling. She was starting to develop paresthesias in the left arm, and she had pain and tenderness across her shoulder (Tr. 312).

         On July 11, 2012, the plaintiff saw Russell K. Daniel, M.D., who also recommended a cervical epidural steroid injection. The plaintiff described pain in her right shoulder that radiated to her right elbow. She also reported numbness and tingling in her left hand but denied weakness. She alleged onset in July 2011, when she heard a “pop” in her shoulder and neck, followed by acute pain in her right shoulder radiating to her right elbow. Dr. Daniel reviewed image studies showing a mild cervical abnormality; he also reviewed an EMG study that did not show radiculopathy. Dr. Daniel did not perform a physical examination (Tr. 318).

         On July 31, 2012, Dr. Daniel reviewed MRI imaging that showed mild to moderate cervical disc disease. The plaintiff was in miserable pain. She did not get dramatic improvement from the first cervical injection. She was still having pain in her triceps, the ulnar forearm, and down into her hand and fingers. She had allodynia in her right shoulder and hand. Dr. Daniel did not perform an examination. He wrote that the plaintiff might need surgery, but that a delay was warranted based on the lack of objective findings. The notes from this visit contradict the notes from three weeks' prior, insofar as Dr. Daniel noted “an EMG proven radiculopathy in [the plaintiff's] right upper extremity.” Dr. Daniel gave her another cervical injection and changed her pain medications to hydromorphone (Tr. 316). On August 6, 2012, she reported minimal relief from two cervical injections. She described feeling “miserable” to Dr. Daniel. She reported allodynia in her right shoulder and hand. Dr. Daniel wrote: “MRI results are not clearly delineating source of her pain.” He recommended a myelogram (Tr. 317).

         On August 8, 2012, Dr. Holford wrote that the myelogram showed disc disease at ¶ 4-5 and C5-6, going toward the left. She was still wearing her sling and reporting severe pain. A shoulder arthroscopy was considered, but Dr. Holford advised against it with a note that the plaintiff would be “worse off” after an arthroscopy (Tr. 311). On August 22, 2012, the plaintiff had pain, tenderness, and paresthesias in her hand. A carpal tunnel release was planned. Her neck continued to bother her, and it was noted this might require a C5-C6 fusion in the future. Dr. Holford wrote that he would “move slow in this regard” (Tr. 310). On September 18, 2012, the plaintiff was seen by Clark Moore, M.D., after her carpal tunnel release. She was still in a fair amount of pain in her shoulder and hand. She was given a short-arm brace and Medrol (Tr. 309). On October 1, 2012, she still had pain and tenderness in her neck and shoulder (Tr. 308). On October 29, 2012, her shoulder still bothered her to some degree. Her carpal tunnel was doing well. Dr. Holford switched her pain medication from Vicodin to Ultram due to constipation (Tr. 307). On February 11, ...

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