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Abstance v. Berryhill

United States District Court, D. South Carolina

January 14, 2019

MISTY NICOLE ABSTANCE, 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 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.).

         Plaintiff applied for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI)[1] 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).

         Plaintiff 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.

         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

         Plaintiff 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).

         On July 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. 423).[2]

         On 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).

         As 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].

         Dr. 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[3] 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).

         On 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. 369-370).

         On 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.[4] (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).

         On June 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).

         Plaintiff 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. 413-419).

         On 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).

         Licensed 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 ...


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