United States District Court, D. South Carolina
CHARLOTTE H. NATHAN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge
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.).
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).
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.
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
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
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.
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.
review of the evidence and testimony in the case, the ALJ
determined that Plaintiff suffers from the
“severe” impairments 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, 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).
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.
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.
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,  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. ...