United States District Court, D. South Carolina, Greenville Division
REPORT OF MAGISTRATE JUDGE
F. McDonald United States Magistrate Judge
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
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.
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).
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
(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
(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
(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,
(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),
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.
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. §§
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).
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.
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).
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).
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).
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).
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
She needed help with trust and paranoia issues and adjunctive
depression (Tr. 365-66).
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).
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.
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).
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.
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
September 4, 2012, she was anxious and described edema in her
feet. Dr. Stuck refilled her Lasix prescription (Tr. 474).
plaintiff returned to Newberry County Memorial Hospital on
December 26, 2012, with ...