United States District Court, D. South Carolina, Greenville Division
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 (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 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 15th 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 ...