Johnson v. Berryhill

          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 Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)) to obtain judicial review of a final decision of the Commissioner of Social Security denying his claim for disability insurance benefits under Title II of the Social Security Act.

         ADMINISTRATIVE PROCEEDINGS

         The plaintiff filed an application for disability insurance benefits (“DIB”) on January 22, 2014, alleging that he became unable to work on January 1, 2014. The application was denied initially and on reconsideration by the Social Security Administration. On October 2, 2014, the plaintiff requested a hearing. The administrative law judge (“ALJ”), before whom the plaintiff and Benson Hecker, an impartial vocational expert, appeared on July 7, 2016, considered the case de novo and, on September 28, 2016, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 24 34). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on October 26, 2017 (Tr. 1-5). The plaintiff then filed this action for judicial review.

         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 on December 31, 2018.

(2) The claimant has not engaged in substantial gainful activity since January 1, 2014, the alleged onset date (20 C.F.R. § 404.1571 et seq).

(3) The claimant has the following severe impairments: obesity, late effects of cerebrovascular disease, Middle Cerebral Artery (MCA) infarction, and lymphedema (20 C.F.R. § 404.1520(c)). The claimant also has the following nonsevere impairments: hypertension, obstructive sleep apnea (OSA), edema, neuropathy, left shoulder pain, speech impediment, poor balance, cerebrovascular accident (CVA), hemiparesis, and respiratory condition.

(4) 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).

(5) 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) except he can sit, stand, or walk for six hours each for a total of an eight hour workday with usual breaks. He can never climb ladders, ropes, or scaffolds. He can occasionally climb ramps or stairs. He can occasionally balance, stoop, crouch, kneel, and crawl. He can occasionally perform fine and gross manipulation with the left upper extremity. He is limited to occasional overhead reaching with the left upper extremity. He must avoid even moderate exposure to hazards such as unprotected heights and moving machinery. He is limited to simple, unskilled work.

(6) The claimant is unable to perform any past relevant work (20 C.F.R. § 404.1565).

(7) The claimant was born on July 9, 1965, and was 48 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 C.F.R. § 404.1563).

(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. § 404.1564).

(9) Transferability of job skills is not material to the determination of disability because using Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).

(10) 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)).

(11) The claimant has not been under a disability, as defined in the Social Security Act, from January 1, 2014, through the date of this decision (20 C.F.R. § 404.1520(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), 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).

         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 past relevant work, and (5) can perform other work. Id. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).

         A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4^th 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 (4^th Cir. 1972).

         EVIDENCE PRESENTED

         The plaintiff was 48 years old on his alleged disability onset date (January 1, 2014) and 51 years old on the date of the ALJ's decision (September 28, 2016). He has a high school education and past relevant work as a firefighter (Tr. 32).

         Evidence Before the ALJ

          On January 2, 2014, the plaintiff went to the hospital complaining of a severe headache in his left frontal lobe area that had started the day before. His symptoms were found to be consistent with a stroke, which was confirmed by MRI. He decompensated and was intubated and placed in intensive care. He was hospitalized from January 2 through January 15, 2014, for an acute cerebrovascular accident (“CVA”). His discharge diagnoses included acute CVA; acute respiratory failure, requiring tracheostomy and ventilator; hypertension; dysphagia resulting in percutaneous endoscopic gastrostomy (“PEG”) treatment with tube feeds; acute drug rash secondary to morphine use; aspiration syndrome; haemophilus respiratory culture positive; hyperglycemia; hypocalcemia; leukocytosis; and anemia, multifactorial. Ernesto Potes, M.D., a neurologist, saw the plaintiff for a consultation after he was admitted to the hospital with complaints of difficulty controlling the left side of his face and severe high blood pressure. Dr. Potes ordered additional testing and stated, “I expect this patient to have fairly good recovery.” He was discharged on January 15^th to the Shepherd Center, a skilled rehabilitation facility (Tr. 243-412, 522-24).

         On January 16, 2014, the plaintiff had an initial consultation with Ford Vox, M.D., for acute brain injury rehabilitation. Dr. Vox recommended rehabilitation for an estimated duration of six weeks, stroke prophylaxis, and deep venous thrombosis (“DVT”) prophylaxis. Venous duplex studies revealed no evidence for DVT within the upper extremity venous systems and no evidence for DVT within the lower extremities bilaterally. It was noted that his initial MRI presented to the emergency room on January 2, 2014, showed multifocal ischemia in the light basal ganglia and scattered elsewhere in the right middle cerebral artery distribution. The MRI suggested portions were between eight and 14 days old, while smaller portions were likely three days old. The plaintiff was unable to provide a review of systems due to his diminished cognitive communications status. He required maximum assistance in all daily activities. He was overweight and had left facial droop. He was restless, but moving only his right side. He had a wet cough. He had a tracheostomy in place and a PEG tube in his abdomen. He had absence of shoulder shrug on the left. His upper and lower extremity right-sided strength was 5/5 and 0/5 on the left except for 1/5 in the triceps. He was hyperreflexic on testing of deep tendon reflexes throughout his upper and lower extremities bilaterally. It was determined that the plaintiff would benefit from inpatient rehabilitation due to his deficits in cognition, communication, and motor and sensory function. His current medications, a statin, Tri-Cor, aspirin, and Coumadin, were continued, and his estimated length of stay was six weeks. During his stay, the plaintiff had a left hip x-ray due to a fall that showed mild left hip degenerative change. He had a left ankle x-ray that showed pes planus with moderate plantar calcaneal spur (Tr. 413-30).

         On April 16, 2014, Frances Kunda, M.D., evaluated the plaintiff to establish primary care. Dr. Kunda noted that the plaintiff was a former patient who suffered a major embolic stroke in January. He was initially unable to swallow at all but was now swallowing. He was getting hoarse occasionally but was able to clear his throat well. He had some weakness in his left upper extremity, with marked decrease in fine and gross motor skills in his left hand. He was to continue physical and occupational therapy at home. He was unhappy about having to continue on Coumadin, and he hoped to have his PEG tube removed soon. He had 2 edema in his bilateral lower extremities and 1 edema in his left hand. Impressions included CVA with left hemiparesis, essential hypertension, hyperlipidemia, and patent foramen ovale (a hole between the left and right atria). Dr. Kunda ordered blood work, continued current medications, and advised the plaintiff to follow up with Dr. Rodak (Tr. 431-34).

         The plaintiff participated in extensive physical therapy from April 22 to August 7, 2014, for his stroke residuals (Tr. 648-774, 790-844). On April 22, 2014, he walked into the therapy room independently. He stated that he had a stroke and was doing “a lot better.” He only verbalized the need to improve swallowing. He stated that he was able to perform all basic self-care and could make a simple meal and help with some home chores. The therapist noted that the plaintiff had excellent rehabilitation potential to reach and maintain his prior level of function. The therapist also noted that the plaintiff was independent in basic self-care and that his wife only had to provide close supervision for transfer into the shower. He had good sitting and standing balance and ambulated without a cane (Tr. 663-69).

         On April 24, 2014, Dr. Potes noted that the plaintiff's left upper extremity remained weak, but that he had isolated movements in the hand. His wife indicated that his left lower extremity edema was getting better. Dr. Potes also noted that the plaintiff had no history of DVT, stood and ambulated fairly well, had very mild left lower extremity weakness in the 4/5 level as compared to 5 on the right side, and had no sensory or visual loss (Tr. 438).

         On April 25, 2014, Dr. Potes evaluated the plaintiff. The plaintiff complained of left shoulder pain. Dr. Potes indicated that he seemed to have some component of bilateral bicipital tendonitis and capsulitis. On examination, the plaintiff had left upper extremity weakness at the three to four level and isolated movements in his hand. He had left hand edema and pain on abduction. He also had lower extremity edema, which his wife felt was improving. He stood and ambulated fairly well, but against some resistance he had very mild left lower extremity weakness in the four to five level compared to five on the right. Dr. Potes thought the plaintiff should see Dr. McCloud about a mass next to his esophagus. Dr. Potes also advised consultation with his cardiologist regarding anticoagulation and with an or thopaedic doctor about his left shoulder (Tr. 438-39).

         On May 8, 2014, Mark A. Lijewski, M.D., a gastroenterologist, evaluated the plaintiff at Dr. Kunda's request regarding dysphagia. Dr. Lijewski noted that the plaintiff had no dysphagia prior to his stroke. Dr. Lijewski suspected that the plaintiff's oropharyngeal dysphagia was due to the stroke itself, and there was not much role for a gastroenterologist in that instance. Dr. Lijewski found the plaintiff to have mildly affected speech and left upper extremity weakness. Dr. Lijewski indicated that he would obtain copies of his gastroenterology studies (Tr. 440-43).

         On May 13, 2014, James N. Ruffing, Psy.D., performed a consultative examination at the Commissioner's request. Dr. Ruffing reviewed a discharge summary from the plaintiff's stroke hospitalization and elicited histories. The plaintiff reported that he was a firefighter for 28 years until he had three strokes in January 2014. He reported that his strokes affected the left side of his body, but he was not aware of problems with cognition/thinking or emotional problems. He was able to care for his personal needs including toileting, bathing, and feeding. He performed some normal tasks and attended church once a week, but he had stopped driving since his stroke. He shopped for himself. He used cash or a debit card to pay for items; pushed a grocery cart; had friends in to ...