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Foote v. Berryhill

United States District Court, D. South Carolina

December 10, 2018

VANESSA P. FOOTE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE.

         The 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.).

         Plaintiff applied for Disability Insurance Benefits (DIB) on August 13, 2013 (protective filing date), alleging disability beginning August 29, 2013[1], 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).

         Plaintiff then filed this action in United States District Court. Liberally construed, Plaintiff appears to assert[2] 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.

         Scope of review

         Under 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 as:

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.” [emphasis added].

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 standard”].

         The 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).

         Medical Records

         On 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.[3] 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).

         During 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).

         The 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).

         Gynecological 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).

         The 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).

         Upon 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.[4]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).

         After 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[5] (7 pages) to the Appeals Council.[6] 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 ...


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