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Painter v. Berryhill

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

March 21, 2019

Kristie G. Painter, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.


         Before the court for review is the Magistrate Judge's Report and Recommendation (“Report”) filed on February 1, 2019 (ECF No. 19). The Report addresses Plaintiff Kristie G. Painter's claim for disability insurance benefits (“DIB”) and recommends that the court affirm the decision of the Commissioner of Social Security Administration (“the Commissioner”). (ECF No. 19 at 1.) For the reasons stated herein, the court ACCEPTS the Report, incorporating it herein, and AFFIRMS the decision of the Commissioner.


         The Report sets forth the relevant facts and legal standards, which this court incorporates herein without a full recitation. (ECF No. 19 at 1-13.) As background, Plaintiff filed an application for DIB under Title II of the Social Security Act on February 18, 2014, which was denied initially and upon reconsideration. (Id. at 1.) After administrative hearings on March 22, 2016, and July 11, 2016, an Administrative Law Judge (“ALJ”) issued an unfavorable decision against Plaintiff on September 22, 2016. (Id. at 1-2.) The ALJ determined that Plaintiff did not have “an impairment or combination of impairments that me[t] or medically equal[ed] the severity of one of the listed impairments in . . . 20 C.F.R. [§] 404.1525(d), 404.1525 and 404.1526.” (ECF No. 6-2 at 16.) Additionally, the ALJ found that Plaintiff possessed the residual functional capacity (“RFC”) to “lift and carry 20 pounds occasionally and 10 pounds frequently”; “stand for six hours, walk for four hours, and sit up to six hours in an eight-hour workday”; “use . . . the upper extremities to perform push or pull operations . . . frequently, bilaterally”; and “use . . . the lower extremities to operate foot controls . . . occasionally, bilaterally.” (Id. at 18.) The ALJ further found Plaintiff “cannot climb ladders, ropes, or scaffolds, but she can occasionally climb ramps and stairs. . . . [and] balance frequently [and] stoop occasionally.” (Id.) The ALJ determined Plaintiff can “never crouch, kneel, or crawl, ” “should avoid all excessive vibration, ” and “ must avoid all exposure to hazards, such as the use of moving machinery and exposure to unprotected heights.” (Id.) Finally, “[f]rom a non-exertional standpoint, ” the ALJ determined that Plaintiff's

work is limited to simple, routine tasks free of fast-paced production requirements. The work can involve only simple work-related decision[s] with few changes, if any[, ] in the workplace. If there are changes, they should be introduced gradually. She can have occasional interaction with the public. [Plaintiff] can be around coworkers during the day with occasional interaction with coworkers.

(Id.) After considering Plaintiff's RFC, age, education, and work experience, the ALJ determined that there were “jobs that exist in significant numbers in the national economy that [Plaintiff could] perform.” (Id. at 27.) On this basis, the ALJ denied SSI to Plaintiff because she was not disabled for purposes of the Social Security Act. (Id. at 28.)

         Plaintiff requested review of the ALJ's decision by the Appeals Council (“the Council”), which the Council denied on February 20, 2018. (Id. at 74.) Thus, the ALJ's decision became the final decision of the Commissioner. (Id.) See also Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011) (stating that an ALJ's decision was the final decision of the Commissioner when the Council denied a request for review); Higginbotham v. Barnhart, 405 F.3d 332, 336 (5th Cir. 2005) (holding that the Commissioner's “final decision” includes when the Council denies a request for review of an ALJ's decision).

         Plaintiff filed the instant action on September 27, 2017, seeking judicial review of the Commissioner's final decision. (ECF No. 1.) To this court, Plaintiff asserted four errors by the ALJ. First, Plaintiff contends “[t]he ALJ committed reversible error by failing to hold a supplemental hearing as requested” after “Dr. Kwock admitted on the record that he had not reviewed whether Plaintiff met Listing 1.04A, which covers disorders of the spine, [1] in conjunction with AR 15-1(4)[2] and controlling . . . precedent [from the United States Court of Appeals for the Fourth Circuit].” (ECF No. 11 at 4.) Plaintiff asserts that under the Social Security Administration's (“SSA”) Hearings, Appeals, and Litigation Law Manual (“HALLEX”),

the ALJ may supplement the hearing record with additional oral testimony, a deposition, or additional documentary evidence if testimony at a hearing leaves unanswered questions. HALLEX I-2-6-80. The HALLEX goes on to state that a continuance or supplemental hearing is appropriate when certain testimony or a document adduced at the hearing has taken the claimant by surprise, is adverse to the claimant's interest, and presents evidence that the claimant could not reasonably have anticipated and to which the claimant is not prepared to respond. Id.

(Id.) Additionally, Plaintiff also asserts the ALJ's decision failed to address Plaintiff's request for a supplemental hearing. (Id. at 4-5.)

         Next, Plaintiff argues the ALJ erred by failing to determine that Plaintiff met Listing 1.04A. (Id. at 5.) According to Plaintiff, the ALJ found Plaintiff did not meet Listing 1.04A because “Plaintiff does not have nerve root compression, motor loss accompanied by sensory or reflex loss, and positive [straight leg raise (“SLR”)] testing (sitting and supine).” (Id. at 6.) The ALJ made this determination in reliance on the opinion of Dr. Kwock, who “admitted on the record that he did not conduct his analysis using the appropriate AR and controlling case law.” (Id.) Prior to issuing his decision, the ALJ asked Plaintiff “to research whether radiculopathy equated to nerve root compression” and “reach out to [her] surgeon to offer some clarity on whether he performed his SLR testing on Plaintiff in sitting and/or supine positions.” (Id. at 6, 8.) Plaintiff asserted that “[i]n a brief submitted to the ALJ on August 9, 2016, [Plaintiff] offered evidence that lumbar radiculopathy was in fact synonymous with or equated to nerve root compression.” (Id. at 6-7.) Additionally,

[e]nclosed with [Plaintiff]'s brief submitted to the ALJ . . . was email correspondence from Dr. Rodriguez clarifying the SLR issue. In his email, Dr. Rodriguez stated that he likely performed both a sitting and supine SLR because Plaintiff was postoperative with continued pain. . . . [and] that he tends to do both a sitting and supine SLR in difficult cases like Plaintiff's.

(Id. at 8 (citations omitted).) Based on this additional information submitted at the ALJ's request, Plaintiff argued that “[a]ll of the requirements of Listing 1.04A are clearly identified in the medical evidence of record, ” and “the ALJ's determination that Plaintiff d[id] not meet, or functionally meet, Listing 1.04A is not supported by substantial evidence.” (Id.)

         Third, Plaintiff argued that “[d]espite opining that Plaintiff suffered from [moderate limitations in concentration, persistence, and pace], the ALJ failed to account for Plaintiff's inability to stay on task in his . . . RFC, ” in violation of Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). (Id. at 9.) Plaintiff asserted “the ALJ did not include a clear limitation in the RFC, ” and “the non-exertional limitations outlined in the ALJ's RFC deal exclusively with workplace adaptation and fail to address Plaintiff's issue with concentration, persistence, and pace.” (Id. at 12.)

         Last, Plaintiff argued “[t]he ALJ committed reversible error by failing to weigh the medical opinion of [Dr. Kwock] called to testify at Plaintiff's hearing.” (Id.) Plaintiff asserts the ALJ “is under an absolute obligation to weigh the medical opinions of record, ” and “it is clear based upon a review of the ...

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