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Higginbotham-Dickens v. Berryhill

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

June 17, 2019

Karen Higginbotham-Dickens, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          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 her 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 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.

         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 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 ambulation.
(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)).

         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 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).

         On 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).

         Also in 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).

         On 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).

         On May 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).

         On 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 ...


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