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Widener v. Berryhill

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

January 18, 2019

Violet Widener, 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 Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.

         ADMINISTRATIVE PROCEEDINGS

         The plaintiff filed applications for disability insurance benefits (“DIB”), disabled widow's benefits (“DWB”), and supplemental security income (“SSI”) benefits on March 26, 2013 (Tr. 222-32). In the applications, the plaintiff alleged that she became unable to work on July 20, 2012 (Tr. 222, 232). The applications were denied initially and on reconsideration by the Social Security Administration (Tr. 68-137). On April 25, 2014, the plaintiff requested a hearing before an administrative law judge (“ALJ”), and on July 5, 2016, ALJ Larry J. Stroud, conducted a de novo hearing on the plaintiff's claims (Tr. 36-67). The ALJ issued a decision on August 2, 2016, finding that plaintiff has not been under a disability within the meaning of the Social Security Act (“the Act”) from July 20, 2012, the alleged onset date, through August 2, 2016, the date of the decision (Tr. 18-35). The plaintiff requested Appeals Council review of the ALJ's decision and the Council declined review on September 29, 2017 (Tr. 1-4). The plaintiff filed this action for judicial review on December 1, 2017 (doc. 1).

         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 meets the insured status requirements of the Social Security Act through December 31, 1999 (Exhibit 5D).
(2) It was previously found that the claimant is the unmarried widow of the deceased insured worker and has attained the age of 50. The claimant met the non-disability requirements for disabled widow's benefits set forth in section 202(e) of the Social Security Act.
(3) The prescribed period ended on May 15, 2015.
(4) The claimant engaged in substantial gainful activity in 2013 (Exhibit 5D) (20 C.F.R §§ 404.1520(b), 404.1571 et seq., 416.920(b), 416.971 et seq.).
(5) However, there has been a continuous 12 month period(s) during which the claimant did not engage in substantial gainful activity. The remaining findings address the period(s) the claimant did not engage in substantial gainful activity.
(6) The claimant has the following severe impairments: chronic obstructive pulmonary disease, neuropathy of the feet, congestive heart failure, degenerative disc disease of the lumbar spine and affective disorder (20 C.F.R. §§ 404.1520(c), 416.920(c)).
(7) The claimant does not have an impairment or combination of impairments that meets or medically equals 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, 416.920(d), 416.925, 416.926).
(8) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with the following exceptions: the claimant cannot climb ladders, ropes and scaffolds. She can occasionally stoop, crouch, crawl, kneel and climb ramps and stairs. The claimant must avoid exposure to fumes, chemicals, pollutant irritants, humidity and concentrated exposure to extreme heat. She is able to perform simple, repetitive tasks; by which, the undersigned means she can understand, remember and carry out simple instructions.
(9) The claimant is unable to perform her past relevant work as a housekeeper (20 C.F.R. §§ 404.1565, 416.965).
(10) The claimant was born on September 29, 1962, and was 49 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date. (20 C.F.R. §§ 404.1563, 416.963).
(11) The claimant has a limited education and is able to communicate in English (20 C.F.R. §§ 404.1564, 416.964).
(12) Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 C.F.R. §§ 404.1568, 416.968).
(13) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 404.1569, 404.1569(a), 416.969, 416.969(a)).
(14) The claimant has not been under a disability, as defined in the Social Security Act, from July 20, 2012, through the date of this decision (20 C.F.R. §§ 404.1520(g), 416.920(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) and § 1382c(a)(3)(A), (H)(i), 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), 416.905(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 or her past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).

         A claimant must make a prima facie case of disability by showing she is unable to return to her past relevant work because of her 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 49 years old on her alleged disability onset date (July 20, 2012) and 53 years old at the time of the ALJ's decision (August 2, 2016). She completed the eighth grade and has unskilled past relevant work experience as a housekeeper (Tr. 27, 40).

         On August 19, 2010, the plaintiff was seen at Saluda Family Practice for depression and anxiety. On October 6, 2010, she reported depression and headaches. On November 22, 2010, Deborah Grate, M.D., treated the plaintiff for anxiety and stress (Tr. 353-57). On January 18, 2011, she was diagnosed with prolonged posttraumatic stress disorder (“PTSD”). She reported panic attacks and frequent crying (Tr. 358-59). On February 15, 2011, trazodone was prescribed for her anxiety (Tr. 360-61).

         On March 9, 2011, the plaintiff saw Alfred R. Ebort, M.D., at Greenwood Mental Health. She reported crying and poor energy. Her thought content was paranoid and she was assessed a Global Assessment of Functioning (“GAF”) score of 50.[2] She needed help with trust and paranoia issues and adjunctive depression (Tr. 365-66).

         On March 10 and 11, 2011, the plaintiff was seen by Dr. Grate at Calhoun Falls Family Practice for reactive airway disease and acute bronchitis. On July 12, 2011, she returned for medication refills for anxiety, depression, PTSD, hypertension, and reactive airway disease (Tr. 317, 373-76).

         On December 9, 2011, the plaintiff reported to Saluda Family Practice that she was using her Proventil three to four times daily (Tr. 497-98). On March 9, 2012, she had a headache and needed a sample of Advair (Tr. 501). On July 20, 2012, she reported severe shortness of breath for the past two days. A physical examination revealed that respiratory effort, auscultation of the lungs and of the heart were normal (Tr. 505-06).

         On July 22, 2012, the plaintiff was admitted to Newberry County Memorial Hospital for acute pulmonary edema and acute respiratory failure with chronic obstructive pulmonary disease (“COPD”) exacerbation with acute-on-chronic systolic dysfunction. Upon admission, she reported a history of chronic lung disease with long-standing tobacco use. She acknowledged that she smoked more than one pack of cigarettes per day (Tr. 383-86, 405-08). A July 26, 2012, a chest x-ray showed marked improvement with aeration and no acute findings (Tr. 420, 706). On July 29, 2012, the plaintiff was discharged home (Tr. 408).

         On July 31, 2012, the plaintiff was seen by cardiologist William W. Stuck, M.D., at Columbia Heart, P.A., for a followup to her hospitalization. She was gradually recovering from her pulmonary exacerbation and had elevated cardiac enzymes (Tr. 475).

         On August 6, 2012, Dr. Grate saw the plaintiff for followup of COPD, which she described as “stable” since her last visit. The plaintiff said she had to use her inhaler more frequently recently. She reported lower extremity edema. Respiratory effort, auscultation of the lungs and auscultation of the heart were normal. Examination of the extremities for edema and/or varicosities was normal (Tr.508-10).

         On September 4, 2012, she was anxious and described edema in her feet. Dr. Stuck refilled her Lasix prescription (Tr. 474).

         The plaintiff returned to Newberry County Memorial Hospital on December 26, 2012, with ...


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