United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
BRISTOW MARCHANT UNITED STATES MAGISTRATE JUDGE
Plaintiff filed the complaint in this action 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
Civil Rule 73.02(B)(2)(a)(D.S.C.).
applied for Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI) on March 25, 2014
(protective filing date), alleging disability beginning
August 7, 2013, due to a previously fractured patella,
depression, anxiety, a hip problem, knee problems, arthritis,
and nerve damage. (R.pp. 14, 222, 228, 251). Plaintiff had
filed a previous application for benefits, which was denied
by an Administrative Law Judge (ALJ) on August 6, 2013.
(R.pp. 14, 91103). Plaintiff s claims in her new
applications, wherein she asserts disability beginning the
day after the decision denying her previous application, were
denied both initially and upon reconsideration. Plaintiff
then requested a hearing before an ALJ, which was held on
January 30, 2017. (R.pp. 31-68). The ALJ thereafter denied
Plaintiffs claims in a decision issued March 13, 2017. (R.pp.
14-25). 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. 1-5).
then filed this action in United States District Court.
Plaintiff asserts that there is not substantial evidence to
support the ALJ's decision, and that the Court should
reverse and remand her case for further administrative
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).
s medical records show that prior to her alleged onset date,
Plaintiff fractured her left patella in an accident at work.
Dr. Randall M. Meredith, an orthopedic surgeon, performed
open reduction and internal fixation on the fracture in March
2011. (See R.p. 96). After concluding that Plaintiff
had chondromalacia of the patella, Dr. Meredith performed
left knee arthroscopy in March 2012. (See R.p. 97).
3, 2012, Plaintiff complained to Dr. Meredith about left knee
pain that was worse with walking. Examination indicated no
swelling or instability, that Plaintiff was neurovascularly
intact, and her range of motion was 0 to 130 degrees. An
injection of Synvisc was administered. (R.p. 426). On
September 26, 2012, Plaintiff continued to complain of knee
pain. On examination her range of motion was 0 to 125
degrees, she had some popping in the kneecap, and she
complained of tenderness to palpation. Dr. Meredith
prescribed Neurontin. (R.p. 425). On October 16, 2012,
Plaintiff reported to Dr. Meredith that Neurontin was helping
some, her left knee range of motion had improved to 0 to 135
degrees, she had no instability, and her tenderness was
decreased. X-rays indicated that the screws from her
operation were in good position with a healed patella, and
Plaintiff was advised to continue activities as tolerated.
(R.p. 424). On January 15, 2013, Dr. Meredith noted that
Plaintiff was still complaining of continued left knee pain,
but although she was walking with a cane and had an antalgic
gait, on examination she was found to have good range of
motion, no instability, and no swelling in her left knee,
while x-rays continued to show that her patella was healed
and in good position, with screws in good position. Dr.
Meredith opined that Plaintiff had reached maximum medical
improvement and advised her to continue on Neurontin. (R.p.
March 13, 2013, Plaintiff reported to Community Care
Counseling (CCC) of Aiken that she had been taking Prozac for
depression since the time of her work accident and wanted to
contribute, but was limited by knee pain. It was noted that
she presented as a depressed woman, walked with a cane, and
immediately put her foot up. (R.pp. 338). On April 16, 2013,
Dr. James L. Bland at Family Health Care checked Plaintiff
for complaints of pain in her legs and left knee, anxiety,
and depression and discussed her medications including
Tramadol. (R.p. 355). On May 8, 2013, Plaintiff stated to a
CCC provider that she recently became frustrated and angry
more easily. (R.p. 337). At CCC on May 22, 2013, Plaintiff
stated that she missed her work, hated being homebound, found
herself isolating more, could no longer walk her dog because
the dog's leash wrapped around her cane, could not clean
her entire home anymore, could not sleep well due to pain,
had trouble standing for a long time, had anxiety, had panic
attacks, and was under financial stress due to doctors'
bills. (R.p. 334).
previously noted, Plaintiff has already been determined not
to have been disabled through the time period represented by
the records discussed hereinabove. (R.pp. 14, 91-103).
See Lively v. Sec't of HHS, 820 F.2d 1391, 1392
(4th Cir. 1987) [Principles of res
judicata apply in Social Security disability cases];
see also Osgar v. Barnhardt, No. 02-2552, 2004 WL
3751471, at * 3 (D.S.C. May 29, 2004) [“The reopening
of an application for benefits is left to the discretion of
the Commissioner and a refusal to do so is not capable of
review by the federal courts”]. Therefore, Plaintiff
must show that her condition significantly worsened after
this period of time in order to obtain disability benefits.
Cf. Orrick v. Sullivan, 966 F.2d 368, 370
(8th Cir. 1992) [absent showing of significant
worsening of condition, ability to work with impairments
detracts from finding of disability].
Bland saw Plaintiff for rechecks of her complaints of
allergies, hip pain, tendinitis, bursitis, chronic pain
syndrome, anxiety, and depression and to provide medication
refills on June 12, June 19, and August 12, 2013.
(R.pp. 359-361). On August 28, 2013 An x-ray of Plaintiff s
left hip was noted to be normal (R.p. 357), and Dr. Bland
discussed the x-ray with Plaintiff in September 2013 (R.p.
358). On September 4, 2013, Plaintiff reported to the CCC
provider that she was having trouble with her hip and that
her husband was emotionally and mentally abusive to her.
(R.p. 333). Dr. Bland provided medication refills on October
7, 2013. (R.p. 354). On February 17, April 14, June 18,
August 18, 2014, Dr. Bland rechecked Plaintiff for complaints
of pain in her legs, seasonal allergies, joint pain,
depression, and anxiety. (R.pp. 345, 348, 351, 353).
August 28, 2014, Plaintiff underwent a consultative
examination with Dr. Vasant L. Garde. Plaintiff reported
complaints of left knee pain for the previous three years,
left hip pain for the previous four to five months,
depression, anxiety, nerve damage, and numbness and tingling
in her left leg. She described nagging pain that was worse if
she stood or sat for more than two hours and said that her
pain came and went. Plaintiff also reported that she had a
left knee brace and used a cane at times. Even so, Plaintiff
said that she was able to perform her daily activities, which
included driving, cooking, cleaning, and shopping. (R.pp.
367-369). Dr. Garde's examination revealed that Plaintiff
was able to walk both with and without a cane, although she
favored her left leg. He also noted that she was able to walk
with a normal gait at a satisfactory pace; had normal range
of motion of her cervical spine, lumbar spine, and all upper
and lower extremity joints; had good grip strength; her
straight leg raise testing was negative; motor function was
equal and satisfactory; and mental function was satisfactory.
His examination revealed only minimal atrophy of Plaintiff s
left leg and some dullness of sensation of her left thigh and
leg. Dr. Garde's diagnostic impressions were status post
injury to Plaintiffs left knee with open reduction and
internal fixation, chronic left knee pain, chronic pain in
her left hip with normal x-ray, arthritis of the left knee by
history, obesity, depression, and anxiety. He opined that
Plaintiff could “do basic work-related activities, like
walking, sitting, lifting some, carrying and handling
objects, hearing, speaking, and traveling.” (R.pp.
September 19, 2014, state agency physician Dr. Stephen
Wissman reviewed Plaintiff s medical records and opined that
Plaintiff could occasionally lift/carry up to twenty pounds;
frequently lift/carry up to ten pounds; stand and/or walk
about four hours in an eight hour day; sit about six hours in
an eight-hour day; occasionally push/pull with her left lower
extremity; and engage in postural activities occasionally
except that she could never climb ladders/ropes/scaffolds.
(R.pp. 118-119). On October 6, 2014, state agency
psychologist Dr. Kevin King opined that Plaintiffs affective
and anxiety-related disorders resulted in only mild
restrictions of her activities of daily living; mild
difficulties in maintaining social functioning; and mild
difficulties in maintaining concentration, persistence, or
pace. (R.pp. 116-117). On April 28, 2015, state agency
physician Dr. Robert Kukla reached similar conclusions to Dr.
Wissman, finding that Plaintiff could perform a range of
light work. (R.pp. 143-145). That same day, state
agency psychologist Dr. Samuel Goots opined (as had Dr. King)
that Plaintiff had only mild restrictions in her activities
of daily living; mild difficulties in maintaining social
functioning; and mild difficulties in maintaining
concentration, persistence, or pace. (R.pp. 141-142).
4, 2015, Plaintiff reestablished care at Family Health Care
with Jeneaurey Melendez, a family nurse practitioner (FNP).
Plaintiff told Melendez that she previously saw Dr. Bland,
but the cost was too expensive. Plaintiff reported a history
of anxiety and left knee and hip pain, and it was noted that
she was walking with a cane. (R.p. 395).
underwent a vocational rehabilitation assessment between
August 17 and September 11, 2015. Significantly, she
reportedly was independent in her activities of daily living
and was able to participate in all aspects of the program
without difficulty. She also demonstrated the ability to
perform newly learned tasks in Microsoft Office. However, the
occupational therapists did also note that Plaintiff reported
difficulty standing or sitting for prolonged periods of time,
and difficulty sitting at a computer work station even with
ergonomic positioning, due to increased pain. (R.pp.
January 24, 2016, Plaintiff reported to FNP Abraham Weaver at
Family Health Care that she had daily anxiety attacks which
her antidepressant did not decrease. FNP Weaver noted that
Plaintiff walked with a limp, had reduced weight bearing to
her left lower extremity, and had a reduced range of motion
in her left knee. (R.pp. 392-393). On February 10, 2016,
Plaintiff reported to FNP Weaver that she had pain and
swelling of her left forearm that began within the last day.
It was noted that she had reduced range of motion on flexion
of her digits due to complaints of pain, for which Prednisone
was prescribed. (R.pp. 390-391).
master social worker Carlos Foster at Family Health Care saw
Plaintiff on June 15, 2016, at which time an adjustment
disorder with anxiety and prolonged depressed mood was
assessed. (R.pp. 389-390). At a follow up appointment for her
adjustment disorder with anxious mood on July 13, 2016,
Plaintiff reported to a Family Health Care provider that that
she did not have money for her medications. (R.pp. 384-385).
On August 10, 2016, Plaintiff stated she had been depressed
and anxious since her previous visit. She reported she had
not purchased her mental health medications and that her
husband had lost his job. Treatment notes indicate that
Plaintiff was given resources to help with medication
assistance. (R.pp. 382-384). On September 21, 2016, Plaintiff
complained to FNP Weaver about chronic left knee pain and
wrist joint ...