United States District Court, D. South Carolina, Greenville Division
REPORT OF MAGISTRATE JUDGE
F. McDONALD, UNITED STATES MAGISTRATE JUDGE
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
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 her claim for
disability insurance benefits under Title II of the Social
plaintiff filed an application for disability insurance
benefits (“DIB”) on February 17, 2011, alleging
that she became unable to work on January 20, 2004 (Tr.
179-80). The application was denied initially and on
reconsideration by the Social Security Administration (Tr.
116-18). On October 12, 2011, the plaintiff requested a
hearing (Tr. 131-32). On May 16, 2013, an administrative
hearing was held at which the plaintiff and Robert E.
Brabham, Jr., M.R.C., an impartial vocational expert,
appeared and testified in Columbia, South Carolina (Tr.
23-80). On May 31, 2013, the ALJ considered the case de novo
and found that the plaintiff was not under a disability as
defined in the Social Security Act, as amended (Tr. 10-22).
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 June 30,
2014 (Tr. 1-3). On September 3, 2014, the plaintiff filed a
complaint in United States District Court for the District of
South Carolina, and on January 25, 2016, the case was
remanded to the Commissioner for further review (Tr. 743-64).
Pursuant to the order of the Honorable J. Michelle Childs,
United States District Judge, the Appeals Council directed
the ALJ to complete the administrative record and issue a new
decision consistent with the Judge Childs' order (Tr.
765-68). On November 1, 2016, a second administrative hearing
was held in Columbia, South Carolina. The plaintiff and Joel
D. Leonard, M.Ed., CRC, an impartial vocational expert,
appeared and testified at the hearing (Tr. 693-742). On
February 27, 2017, the ALJ found that the plaintiff was not
disabled under sections 216(i) and 223(d) of the Social
Security Act, as amended (Tr. 667-84). 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 April 18, 2018 (Tr. 658-60). The
plaintiff then filed this action for judicial review.
making the determination that the plaintiff is not entitled
to benefits, the Commissioner has adopted the following
findings of the ALJ:
(1) The claimant last met the insured status requirements of
the Social Security Act on December 31, 2008.
(2) The claimant did not engage in substantial gainful
activity during the period from her alleged onset date of
December 30, 2008 through her date last insured of December
31, 2008 (20 C.F.R. § 404.1571 et seq).
(3) Through the date last insured, the claimant has the
following severe impairments: (1) chronic migraine headaches,
(2) asthma, (3) recurrent balance deficit of uncertain
etiology, and (4) fatigue (20 C.F.R. § 404.1520 (c)).
(4) Through the date last insured, the claimant did not have
an impairment or combination of impairments that met or
medically equaled 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, I find
that through the date last insured, the claimant had the
residual functional capacity to perform sedentary work as
defined in 20 C.F.R. § 404.1567(a) with the following
additional limitations: she could lift ten pounds
occasionally and less than ten pounds frequently. She could
not stand or walk for more than an aggregate of two hours in
an eight-hour workday. She could no more than occasionally
stoop, twist, balance, crouch, kneel, and climb stairs or
ramps. She could not crawl or climb ladders, ropes or
scaffolds. She could have no required exposure to unprotected
heights, vibration, or dangerous machinery. She could have no
concentrated exposure to extremes of humidity, wetness, or
cold temperature. She required a cane or rollator walker for
(6) Through the date last insured, the claimant was capable
of performing past relevant work as a patient representative.
This work did not require the performance of work-related
activities precluded by the claimant's residual
functional capacity (20 C.F.R. § 404.1565).
(7) The claimant was not under a disability, as defined in
the Social Security Act, at any time from December 30, 2008,
the alleged onset date as amended, through December 31, 2008,
the date last insured (20 C.F.R. § 404.1520(f)).
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.
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. §
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).
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
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.
plaintiff was 45 years old on her amended alleged disability
onset date (December 30, 2008) and on the date last insured
(December 31, 2008). She has education through two years of
college and past work experience as a medic and patient
representative (Tr. 248).
February 21, 2003, the plaintiff was seen for headaches and
double vision. She had unsteady gait with vertigo. She also
reported memory problems. She had difficulty walking, and she
felt weak (Tr. 514-15). On March 13, 2003, the plaintiff had
gait ataxia, a history of a memory problems, and daily
headaches (Tr. 513). On March 26, 2003, an MRI of the
cervical spine showed minimal degenerative changes of the
C3-4 and C4-5 discs (Tr. 532).
March 2003, Marianne Wille, D.O., and Edythe A. Browne, a
registered nurse, prepared a letter and a document titled
“Medical Documentation Requirements” for the
human resources department of the Veterans Affairs Medical
Center (“VAMC”), where the plaintiff had most
recently been employed (Tr. 482-84). They noted the
plaintiff's history of allergic rhinitis, asthma, and
migraine headaches and indicated that her asthma and
allergies were controlled with medication (Tr. 484). They
indicated that the plaintiff had difficulty with her gait
secondary to dizziness, but a CT scan of her head was normal.
Clinical findings included a positive Romberg's test (a
neurological test to detect poor balance) and an unspecified
Pronator drift (a neurological test). All laboratory results
were normal. They assessed the plaintiff with an inability to
perform her clerical duties at the VAMC because her
photophobia (light sensitivity) made her unable to work in
lighted areas (Tr. 482-84).
April 11, 2003, the plaintiff was seen again for chronic
daily headaches, memory problems, gait ataxia, tremors,
chronic asthma, diplopia (double vision), weakness of the
extremity, persistent difficulty with walking, and persistent
memory dysfunction (Tr. 512). On May 9, 2003, the plaintiff
was seen by Eleanya Ogburu-Ogbonnaya, M.D., of Midlands
Neurology and Pain Associates, for tremors of her hands and
pain in her joints. Dr. Ogburu-Ogbonnaya wanted to rule out
myasthenia gravis (Tr. 511).
14, 2003, Dr. Ogburu-Ogbonnaya indicated that he did not know
exactly what was wrong with the plaintiff. He recommended
that she be evaluated by a psychiatrist and be referred to
the Medical University of South Carolina (“MUSC”)
or Duke University (Tr. 510). On June 2 and 18, 2003, the
plaintiff was seen for diplopia, gait ataxia, headaches,
memory problems, and tremors (Tr. 509). On June 30, 2003, Dr.
Ogburu-Ogbonnaya indicated that a test for myasthenia gravis
was negative (Tr. 518, 526). On July 28, 2003, the plaintiff
continued with diplopia, difficulty walking, increased
tiredness, and generalized weakness with chronic daily
headaches (Tr. 507). On October 1, 2003, the plaintiff
reported that she continued to have problems with walking,
and she often walked into things (Tr. 506).
February 3, 2004, Dr. Ogburu-Ogbonnaya was unable to elicit
any form of diplopia and referred the plaintiff to
neuro-ophthalmology and MUSC Department of Neurology for a
second opinion. The plaintiff had difficulty with tandem
walking, and her speech showed a mild postural tremor. She
was diagnosed with weakness, headaches, and memory problems.
She noted some occasional slurring of ...