Nathan v. Berryhill

          REPORT AND RECOMMENDATION

          Bristow Marchant United States Magistrate Judge

         The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.).

         Plaintiff applied for Disability Insurance Benefits (DIB) on October 16, 2014 (protective filing date), alleging disability beginning October 5, 2013, due to a shattered right ankle. (R.pp. 12, 167-173, 194, 232). Her claim was denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on July 5, 2017. (R.pp. 30-71). The ALJ thereafter denied Plaintiff's claims in a decision issued September 22, 2017. (R.pp. 9-24). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-3).

         Plaintiff then filed this action in United States District Court. Plaintiff asserts that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed and remanded to the Commissioner for further proceedings, or for an outright award of benefits. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.

         Scope of review

         Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 98 2-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:

evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is “substantial evidence.” [emphasis added].

Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Nothing that the substantial evidence standard is even “less demanding than the preponderance of the evidence standard”].

         The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. “[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

         Discussion

         Plaintiff, who was thirty-six (36) years old at the time of her alleged onset of disability, has a high school education and past relevant work experience as a hand packager and repairer of power tools, as well as a machine feeder and off bearer. (R.pp. 22, 167, 195). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience and functional capacity, and which has lasted or could reasonably be expected to last for at least twelve (12) consecutive months.

         After a review of the evidence and testimony in the case, the ALJ determined that Plaintiff suffers from the “severe” impairments^[1] of status post fracture of her right ankle and obesity, which render her unable to perform any of her past relevant work. (R.pp. 14, 22). However, the ALJ determined that Plaintiff nonetheless retained the residual functional capacity (RFC) to perform sedentary work^[2], limited to lifting or carrying minus ten (10) pounds frequently and up to ten (10) pounds occasionally; using no more than occasional right foot controls; sitting up to six (6) hours; standing and walking up to two (2) hours in and eight (8) hour day with regular breaks; she cannot climb ladders; can occasionally use steps; frequently balance or stoop; occasionally crouch, kneel, and crawl because that would involve bending the ankle; and avoid constant exposure to hazards. (R.p. 17). After obtaining Vocational Expert (VE) testimony, the ALJ found that Plaintiff was not entitled to disability benefits because there were other jobs that exist in the national economy that Plaintiff could perform with these limitations. (R.p. 23).

         Plaintiff asserts that in reaching this decision the ALJ erred by not according adequate weight to the expert opinions of Plaintiff's treating physicians, Dr. John Womack, her orthopedic surgeon, and Dr. Jay Patel, her pain management specialist; by finding that she could perform a limited range of sedentary work when the vocational expert testified that there would be no work Plaintiff could perform where Plaintiff must keep her leg elevated at least four (4) out of eight (8) hours when sitting; and by failing to properly consider and discuss the side effects of Plaintiff's high doses of pain medication, including eight (8) Oxycodone/APAP 5-325 and one Duloxetine 60 mg daily to relieve her chronic and severe pain syndrome. After careful review and consideration of the evidence and arguments presented, the undersigned is constrained to agree with the Plaintiff that the ALJ erred in reaching her decision by improperly evaluating Plaintiff's treating physicians' opinions, thereby requiring a remand of this case for further review.

         Medical Records

         Plaintiff testified that she was in an automobile wreck on May 1, 2007, which required three (3) days of hospitalization. (R.pp. 51-53). Dr. Steve Martin thereafter performed surgery on Plaintiff's right ankle, and she subsequently underwent additional surgeries over the years. (R.pp. 53-57). Dr. Womack, an orthopedic surgeon, treated Plaintiff on numerous occasions and performed these additional surgeries. After the last surgery, in April 2015, Dr. Womack referred Plaintiff to Dr. Patel, a pain management specialist for pain management. See discussion, infra.

         The record reflects that on October 18, 2012, Dr. Womack performed surgery on Plaintiff for removal of painful right foot hardware. (R.pp. 274-275). Dr. Womack thereafter saw Plaintiff on November 5, 2012, for a post-op visit and noted that she was doing well. (R.p. 269). On April 5, 2013, family nurse practitioner Nancy Smith noted that Plaintiff had normal movement of all of her extremities (R.p. 291), and on April 8, 2013, FNP Smith noted that Plaintiff had no localized swelling of her leg and no swelling of her feet, and that Plaintiff had normal movement of all extremities. (R.p. 288). However, on June 18, 2013, FNP Smith saw Plaintiff and noted that Plaintiff reported she still had a lot of right ankle pain, was taking Lortab/Norco PRN, and that she could hardly walk. Even so, Smith noted that Plaintiff was working full-time, ^[3] and Smith observed no localized swelling of Plaintiff's leg and no swelling of her feet. Smith recommended for Plaintiff to continue Adipex, and start Ultram and Mobic for right ankle pain. (R.pp. 279-281). On July 22, 2013, Plaintiff had an MRI performed which showed: “multiple screws in the talus with associated metallic artifact. ...