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Cox v. Berryhill

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

January 2, 2019

Robert Ivan Cox, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          REPORT OF MAGISTRATE JUDGE

          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 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 his claim for disability insurance benefits under Title II of the Social Security Act.

         ADMINISTRATIVE PROCEEDINGS

         The plaintiff filed an application for disability insurance benefits (“DIB”) on September 25, 2012, alleging that he became unable to work on January 1, 2009. The application was denied initially and on reconsideration by the Social Security Administration. On April 15, 2013, the plaintiff requested a hearing. The administrative law judge (“ALJ”), before whom the plaintiff and J. Adger Brown, Jr., an impartial vocational expert, appeared at a video hearing on April 8, 2014, considered the case de novo and, on April 22, 2014, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended. At the hearing, the plaintiff amended his alleged onset date to October 11, 2010 (Tr. 73). 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, 16, 2015 (Tr. 1-3).

         On October 20, 2015, the plaintiff filed a civil action in this court (C/A. No. 6:15-4292-RMG). The Commissioner filed an uncontested motion to remand (Tr. 407-08), and, on July 20, 2016, the case was remanded to the Commissioner for further proceedings (Tr. 410-12). The Appeals Council remanded the case to the ALJ on August 25, 2016 (Tr. 413-14). Upon remand, the Appeals Council instructed the ALJ to evaluate the opinions of Dr. Hutson and Lang and explain the weight given to each opinion; clarify how frequently the plaintiff must alternate positions between sitting and standing during the day; and obtain supplemental vocational evidence regarding the effect of the plaintiff's limitations on the occupational base (Tr. 415-17).

         On April 11, 2017, a second video hearing was held before the ALJ. The plaintiff and Arthur F. Schmitt, an impartial vocational expert, appeared at the hearing. On August 2, 2017, the ALJ again found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 352-63). The ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.984(a) (stating that the ALJ's decision becomes the final decision of the Commissioner when a case is remanded by a federal court for further consideration, unless the Appeals Council assumes jurisdiction of the case).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 last met the insured status requirements of the Social Security Act on December 31, 2012.
(2) The claimant did not engage in substantial gainful activity during the period from his amended alleged onset date of October 11, 2010, through his date last insured of December 31, 2012 (20 C.F.R. § 404.1571 et seq).
(3) Through the date last insured, the claimant had the following severe impairments: obesity and degenerative joint disease of the wrists and right knee (20 C.F.R. § 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled 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).
(5) After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work (described as requiring lifting and carrying 20 pounds occasionally and 10 pounds frequently as well as an ability to stand, sit, and walk each for 6 hours in an 8-hour workday) with no climbing, crawling, or balancing, no exposure to hazards, and no fingering or fine manipulation. The claimant also requires an accommodation for sit/stand option at will for 15 minutes each working hour.
(6) Through the date last insured, the claimant was unable to perform any past relevant work (20 C.F.R. § 404.1565).
(7) The claimant was born on June 22, 1959, and was 53 years old, which is defined as an individual closely approaching advanced age, on the date last insured (20 C.F.R. § 404.1563).
(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. § 404.1564).
(9) Transferability of job skills is not material to the determination of disability because using 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) Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 C.F.R. §§ 404.1569, 404.1569(a)).
(11) The claimant was not under a disability, as defined in the Social Security Act, at any time from October 11, 2010, the amended alleged onset date, through December 31, 2012, the date last insured (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.

         APPLICABLE LAW

         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).

         EVIDENCE PRESENTED

         The plaintiff was 51 years old on his amended alleged disability onset date (October 11, 2010) and 53 years old on his date last insured (December 31, 2012). He graduated from high school and has past relevant work experience as a fast food manager (Tr. 73, 361).

         On October 11, 2010, the plaintiff presented to Smith Medical Clinic (Bakersville Ministries) with complaints of swelling and pain in both hands. On examination, his right and left hands were edematous, and his right hand grip strength was found slightly weaker than his left. His right wrist showed a soft mass, but there was no redness, fluid wave, or pain with palpation. Blood tests were ordered, along with x-rays of his hands and wrists. He was prescribed ibuprofen and lisinopril (Tr. 298, 311).

         On October 12, 2010, the plaintiff was seen at Waccamaw Community Hospital with complaints of pain and swelling in his hands and wrists. X-rays showed degenerative changes involving predominantly the distal radius and radial styloid and adjacent carpal bones. Spur formation involving the navicular was also observed, as were chronic changes of the lunate and capitate, as well as the trapezium and trapezoid carpal bones. No determination was made as to whether the condition was the result of some prior injury or a residual deformity, but no acute injuries were detected. Overall impression was degenerative joint disease without acute findings. Images of the right hand showed degenerative changes involving predominantly the metacarpal heads. It was also noted that the plaintiff had a metallic foreign body within the second digit adjacent to the proximal phalanx as a result of a previous injury. These images also suggested degenerative joint disease. X-rays of the left hand showed degenerative joint disease, with changes predominantly involving the metacarpal heads and first digit (Tr. 275-77).

         On October 19, 2010, the plaintiff was seen at Smith Medical Clinic for a followup exam to review lab work. He reported his hand pain was improved from the prior visit, since starting medication. On examination, the plaintiff's grip strength was “good” bilaterally. Impression was hypertension (not well-controlled) and degenerative joint disease. He was to take ibuprofen daily for two weeks, then drop his dose if he was feeling better (Tr. 310).

         On August 22, 2011, the plaintiff presented at Smith Medical Clinic for a followup. He presented with high blood pressure and reported he had run out of medication while he was out of town. On examination, it was noted that he had ankle edema. He was urged to remain compliant with his hypertension medications. He made no complaints at this time concerning his arthritic symptoms, and no adjustments were made to any of his medications except to provide refills (Tr. 309). On August 31, 2011, he was assessed with hyperlipidemia and was prescribed Zocor. He had no complaints about his arthritic symptoms. On November 30, 2011, he was seen for complaints about pain and swelling in his right hand. On examination, there was soft tissue swelling in the right wrist. His hands were tremulous. He also reported that he had drank excessive amounts of alcohol over the weekend and had run out of medication. He indicated that he exercised daily. He was prescribed a high dose of Ibuprofen (Tr. 306). The plaintiff returned in February 2012 and requested refills of his hypertension and high cholesterol medications. He had no musculoskeletal complaints, and there were no related examination findings (Tr. 305).

         On June 6, 2012, the plaintiff returned to Smith Medical Clinic with complaints of right hand pain and difficulty holding things and using his hand. Ibuprofen was continued, and he was referred for lab work (Tr. 303). Less than two weeks later, the plaintiff reported “feel[ing] better overall” (Tr. 302).

         On July 24, 2012, the plaintiff returned to Smith Medical Clinic with complaints of right knee pain. He had been trying to do some work at home and aggravated an old injury. On examination, the right knee was red, warm, and swollen with a small amount of fluid in the capsule. He was prescribed doxycycline and Motrin (Tr. 300). On August 28, 2012, he had a followup examination to evaluate his right knee. The fluid and swelling had resolved (Tr. 299).

         In an adult function report completed on November 6, 2012, the plaintiff reported that he lived with friends; cared for his pet dogs by feeding, walking, washing, and grooming them; was able to tend to personal care; prepared simple meals such as sandwiches and frozen dinners; cleaned; washed laundry; did household repairs; ironed; mowed his lawn; and shopped in stores. He also reported that he did not have a driver's license but that he went out daily and walked, used public transportation, rode in cars, and rode a bicycle. The plaintiff's hobbies included reading, ...


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