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Wong v. Acting Commissioner of Social Security Administration

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

February 12, 2019

Michelle Wong, Plaintiff,
v.
Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          R.BRYAN HARWELL, UNITED STATES DISTRICT JUDGE.

         Plaintiff Michelle Wong (“Plaintiff”) seeks judicial review, pursuant to 42 U.S.C. § 405(g), of a final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying Plaintiff's claim for disability insurance benefits (“DIB”) under the Social Security Act (the “Act”).[1] The matter is before the Court for review of the Report and Recommendation of United States Magistrate Judge Thomas E. Rogers, III, made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2) for the District of South Carolina. The Magistrate Judge recommends the Court affirm the Commissioner's decision. [ECF #13]. Plaintiff raises several objections to the Magistrate Judge's recommendation. [ECF #15]. Defendant responded to those objections. [ECF #18].

         Factual Findings and Procedural History

         Plaintiff was forty-five on the date of her alleged onset of disability.[2] The facts, including the medical history and evidence contained within the record, are adequately set forth by the Magistrate Judge in the Report and Recommendation. [ECF #13, pp. 2-14]. Briefly stated, Plaintiff alleges disability due to depression, back surgery due to ruptured desks, diabetes, and arthritis. [ECF #6-3, Ex. 4A]. Plaintiff has suffered from ongoing low back pain for several years. In December of 2010, Plaintiff underwent an MRI which revealed multilevel degenerative disc disease. [ECF #6-9, Ex. 10F]. On June 6, 2011, Plaintiff was admitted for lumbar decompression and posterior lumbar interbody fusion surgery. [ECF #6-9, Ex. 9F]. On August 20, 2011, Plaintiff completed a function report stating she could not do repetitive motion work, bend, stand or walk for long periods of time and wore a brace that limited movement. [[ECF #6-6, Ex. 8E]. On November 2, 2011, Plaintiff was referred to Dr. Tony DiNicola for chronic pain management. Dr. DiNicola assessed Plaintiff as having degenerative disc disease, lumbar spondylosis, lumbar spinal stenosis, and status post L2-3 decompression and fusion. [ECF #6-9, Ex. 11F].

         On December 2, 2011, Dr. Matthew Fox, a state agency reviewing consultant, reviewed Plaintiff's records and opined that Plaintiff could lift and carry twenty pounds occasionally, lift and carry 10 pounds frequently, stand, walk, and/or sit six hours each in a workday, frequently climb ramps and stairs, balance kneel, crouch, and crawl, occasionally climb ladders/ropes/scaffolds and occasionally stoop. [ECF #6-3, Ex. 4A]. Dr. Hugh Clarke, another state agency reviewing consultant essentially agreed with this review. [[ECF #6-3, Ex. 7A].

         Plaintiff underwent another MRI which showed stable disc disease changes without progressing disc protrusion and stable multilevel degenerative changes elsewhere. A few days later, an EMG/NCV showed mild median neuropathy at her right wrist. [ECF #6-10, Ex. 21F]. Plaintiff continued to treat with Dr. DiNicola, and also continued treatments with Dr. Christian Nowatka in 2012, who indicated in a statement that he had treated Plaintiff since 2003.

         On October 4, 2012, Dr. DiNicola submitted a statement. He indicated that Plaintiff would be limited to no more than sedentary work. He stated she should lift no more than 15-20 pounds, that she would need to change positions between sitting and standing “frequently” due to low back pain. [ECF #6-10, Ex. 19F]. Dr. DiNicola further noted in a follow up visit that Plaintiff still had significant difficulties with any prolonged activity with standing, walking, or even sitting or long periods of time. [ECF #6-10, Ex. 20F]. On February 19, 2013, Dr. Nowatka also prepared a statement regarding Plaintiff's condition. He stated that he has been treating her as her primary care physician and that Plaintiff continues to experience back pain despite having surgery. He further stated that Dr. DiNicola would have a better idea regarding Plaintiff's limitations but that it would be consistent with her condition to have difficulty bending and lifting. He also noted that she would have difficulty maintaining either a standing or a seated position and would need to change positions “frequently.” Finally, he stated that she would have difficulty maintaining a regular work schedule due to the need for frequent breaks and frequent position changes due to her low back pain. [ECF #6-10, Ex. 24F].

         Plaintiff initially received an unfavorable decision by the ALJ on June 21, 2013. The Appeals Council denied her request for review of that decision on October 7, 2014, making the ALJ's decision the final decision by the Commissioner. After the case was remanded, Plaintiff testified at a second hearing on June 22, 2016. Thereafter, the ALJ issued an unfavorable decision on September 16, 2016, determining Plaintiff was not disabled. The Appeals Council denied this request for review on September 18, 2017, thereby making the ALJ's decision the decision of the Commissioner. In the decision, the ALJ's findings were as follows:

(1) The claimant last met the insured status requirements of the Social Security Act on September 30, 2013.
(2) The claimant did not engage in substantial gainful activity during the period from her alleged onset date of December 23, 2010 through her date last insured of September 30, 2013 (20 CFR 404.1571 et seq.).
(3) Through the date last insured, the claimant had the following combination of medically determinable impairments: lumbar degenerative disc disease status post fusion surgery with failed back syndrome; morbid obesity; right carpal tunnel syndrome (CTS); depression, and anxiety (20 CFR 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 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526).
(5) After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 C.F.R. 404.1567(a) except that she can never climb ladders, or be exposed to dangerous machinery or unprotected heights. She can occasionally stoop, and can frequently balance, crouch, kneel, crawl, climb stairs, and use her right hand to finger. She needs a sit stand option, and will need to change position every 45 minutes while remaining at the work station. She can perform simple, routine tasks and follow instructions for two hours at a time before needing a normal break of either 15 minutes, or once per day, a 30 minute meal break.
(6) Through the date last insured, the claimant was unable to perform any past relevant ...

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