United States District Court, D. South Carolina
VANESSA P. FOOTE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE.
Plaintiff filed the complaint in this action, pro
se, pursuant to 42 U.S.C. § 405(g), seeking
judicial review of the final decision of the Commissioner
wherein she was denied disability benefits. This case was
referred to the undersigned for a report and recommendation
pursuant to Local Rule 73.02(B)(2)(a), (D.S.C.).
applied for Disability Insurance Benefits (DIB) on August 13,
2013 (protective filing date), alleging disability beginning
August 29, 2013, due to fibroids, a heart murmur, a
tumor in her uterus, anemia, bursitis in her hip, and edema.
(R.pp. 29, 54-55, 203). Plaintiff s claim was denied both
initially and upon reconsideration. Plaintiff then requested
a hearing before an Administrative Law Judge (ALJ), which was
held (during which Plaintiff was represented by counsel) on
October 3, 2016. (R.pp. 52-81). The ALJ thereafter denied
Plaintiffs claim (finding that she was not disabled from her
amended alleged onset date of August 29, 2013 to her date
last insured for DIB on December 31, 2014) in a decision
issued on November 30, 2016. (R.pp. 29-45). The Appeals
Council denied Plaintiffs request for a review of the
ALJ's decision, thereby making the determination of the
ALJ the final decision of the Commissioner. (R.pp. 5-11).
then filed this action in United States District Court.
Liberally construed, Plaintiff appears to
assert that the ALJ's decision is not
supported by substantial evidence, and that this case should
be reversed with an award of benefits or alternatively
remanded for further proceedings. The Commissioner contends
that the decision to deny benefits is supported by
substantial evidence, and that Plaintiff was properly found
not to be disabled.
42 U.S.C. § 405(g), the Court's scope of review is
limited to (1) whether the Commissioner's decision is
supported by substantial evidence, and (2) whether the
ultimate conclusions reached by the Commissioner are legally
correct under controlling law. Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990); Richardson v.
Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers
v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If
the record contains substantial evidence to support the
Commissioner's decision, it is the court's duty to
affirm the decision. Substantial evidence has been defined
evidence which a reasoning mind would accept as sufficient to
support a particular conclusion. It consists of more than a
mere scintilla of evidence but may be somewhat less than a
preponderance. If there is evidence to justify
refusal to direct a verdict were the case before a jury, then
there is “substantial evidence.”
Hays, 907 F.2d at 1456 (citing Laws v.
Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also
Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir.
2008)[Nothing that the substantial evidence standard is even
“less demanding than the preponderance of the evidence
Court lacks the authority to substitute its own judgment for
that of the Commissioner. Laws, 368 F.2d at 642.
“[T]he language of [405(g)] precludes a de
novo judicial proceeding and requires that the court
uphold the [Commissioner's] decision even should the
court disagree with such decision as long as it is supported
by ‘substantial evidence.'” Blalock v.
Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
August 29, 2013, Plaintiff was initially examined at North
Central Family Medical Center (North Central) for complaints
of abdominal bloating and fibroids. Lab work was ordered.
(R.pp. 271-277, 413-417). Plaintiff was thereafter treated
for chest pain and shortness of breath at the Chester
Regional Medical Center on September 18, 2013. A chest x-ray
was clear. She was diagnosed with acute bronchospasm, left
chest posterior cystic structure of uncertain etiology, and
cirrhosis. Albuterol was prescribed. (R.pp.
280-287, 359). A chest CT scan without contrast showed a
nodular appearance to her liver that could be cirrhosis and
for which metastatic disease was not excluded. There was also
a large cystic structure in her right hemithorax posteriorly,
and a CT scan of her abdomen and pelvis with contrast was
suggested. (R.p. 350). A CT of Plaintiff s pulmonary arteries
revealed no evidence of central pulmonary embolus, but showed
irregular nodular densities in both lung bases that could be
areas of bronchopneumonia. Metastatic disease was also
considered, and there was a large cystic structure in her
right chest posteriorly of uncertain etiology that was
possibly a bronchogenic cyst. (R.p. 352).
a followup appointment at North Central on September 19,
2013, Plaintiff complained that she had a bad reaction to the
Albuterol mask, so samples of Symbicort were given for her
shortness of breath. She was referred to cardiology
concerning her heart murmur. (R.pp. 267-270, 418-421). On
September 21, 2013, Plaintiff was treated for shortness of
breath at the emergency department of Carolinas Health Care
System in Charlotte, North Carolina. However, a chest x-ray
was noted to be unremarkable, and the impression was dyspnea.
(R.pp. 291-314). On September 23, 2013, Plaintiff was
examined by Dr. Pradeep Singh of Carolina Cardiology
Associates for her complaints of dyspnea and chest pain. Dr.
Singh's impression was obesity (for which he gave
instructions on a low fat diet), a cardiac murmur that did
not appear to be significant as it appeared to be a soft
ejection flow murmur (Plaintiffs echocardiogram records were
to be obtained), and shortness of breath with no evidence of
congestive heart failure or a cardiac disorder (Plaintiffs
EKG was noted to be normal). (R.pp. 320-321).
very next day, Plaintiff presented to the Chester Regional
Medical Center emergency room for complaints of shortness of
breath. A chest x-ray was again noted to be normal. (R.pp.
339-340, 354). A CT (with IV contrast) of Plaintiff s abdomen
and pelvis revealed a cystic mass in her right lower thorax
which was likely a bronchogenic cyst; enlargement of her
heart; diffuse parenchymal lesions of her liver, an enlarged
liver, and nodular surfaces for which further evaluation was
suggested; and a very enlarged uterus with calcified and
noncalcified masses which might represent leiomyomas
(fibroids), but for which leiomyosarcoma was not excluded and
consultation with a gynecologist was suggested. The
impression was large cystic structure in the posterior right
hemithorax probably a bronchogenic cyst; a large nodular
liver, likely cirrhosis; multiple liver lesions with
metastatic disease not excluded and several enlarged lymph
nodes in the gastrohepatic ligament; and a grossly abnormal
uterus with multiple masses which might represent
leiomyomatous change but for which a leiomyosarcoma could not
be excluded. (R.pp. 341-343, 354-356). She was diagnosed with
an acute exacerbation of asthma and an abdominal mass. (R.pp.
325-338, 353). Plaintiff returned again to the Chester
Regional Medical Center the next day (September 25, 2013),
where she was discharged with an assessment of sleep apnea.
(R.pp. 345-348, 357).
care was provided to the Plaintiff at North Central on
September 26 and October 3, 2013. (R.pp. 426-430). After a
blood pressure check at North Central on December 12, 2013,
Plaintiff was diagnosed with hypertension. Plaintiff
complained of fatigue, dyspnea, bloating, and numbness in her
extremities. Medication was prescribed, blood tests were
ordered, and the plan was for Plaintiff to return in the new
year for a CT of her abdomen and pelvis to rule out a
neoplasm. (R.pp. 378-380, 392-396, 431-435). During an
appointment at North Central on March 12, 2014, Plaintiff s
hypertension was found to be uncontrolled, but it was also
noted that she had not filled her blood pressure
prescription. (R.pp. 401-403). On May 12, 2014, Plaintiff was
again assessed with hypertension and medications were
prescribed at North Central. (R.pp. 405-407). Plaintiffs
blood pressure was elevated some at an appointment at North
Central on July 1, 2014. (R.pp. 444-447).
record also shows that, after her date last insured for DIB,
Plaintiff was treated for hypertension, asthma, and
dyslipidemia at Good Samaritan Medical Clinic on March 18 and
June 3, 2015. (R.pp. 453-458). She was treated at Chester
Regional Medical Center for an acute exacerbation of her
hypertension on June 4, 2015. (R.pp. 461-468).
referral from Good Samaritan, Plaintiff began treatment for
asthma, shortness of breath, and coughing with Dr. Ifediora
F. Afulukwe at Metrolyna Healthcare on July 23,
2015.Prednisone was prescribed. (R.pp.
472-476). On November 23, 2015, Plaintiff reported to Dr.
Afulukwe that she had marked dyspnea with activity, was
unable to climb a flight of stairs, and had limitations
walking on level ground in her home. Dr. Afulukwe assessed
Plaintiff as being overweight and having asthma, dyspnea, and
snoring symptoms. He noted that she needed a sleep study, but
was unable to afford one. Dr. Afulukwe assessed Plaintiff
with respiratory symptoms which appeared to be allergic
respiratory diathesis with AR and asthma for which Singulair
was prescribed, and opined that “[a]s a result of
[Plaintiffs] respiratory difficulties and chronic fatigue,
she has not been able to work.” (R.pp. 469-472).
her claim was denied by the ALJ on November 30, 2016,
Plaintiff, at that time still represented by counsel,
submitted records from the Chester Regional Medical Center
dated September 14, 2016 (20 pages); records from Health
Springs Medical Center dated September 29, 2016 (5 pages);
and a medical source statement from Dr. Afulukwe dated
February 2017 (7 pages) to the Appeals
Council. Plaintiff argued to the Appeals
Council that the ALJ failed to properly evaluate the opinion
evidence and failed to properly evaluate her RFC. (R.pp.
253-257). In denying Plaintiffs request for review, the
Appeals Council stated that it had considered the reasons
Plaintiff disagreed with the ...