United States District Court, D. South Carolina
Kaymani D. West United States Magistrate Judge
social security matter is before the court pursuant to 28
U.S.C. § 636(c) and Local Civil Rule 83.VII.02 (D.S.C.)
for final adjudication, with the consent of the parties, of
Plaintiff's petition for judicial review. Plaintiff
brought this action pursuant to 42 U.S.C. § 405(g) to
obtain judicial review of a final decision the Commissioner
of Social Security (“Commissioner”), denying her
claim for Disability Insurance Benefits (“DIB”)
pursuant to the Social Security Act (“the Act”).
Having carefully considered the parties' submissions and
the applicable law, the court affirms the Commissioner's
decision for the reasons discussed herein.
8, 2014,  Plaintiff filed an application for DIB
alleging a disability onset date of June 9, 2014. Tr. 188-89.
Her claim was denied initially, Tr. 88, and upon
reconsideration, Tr. 107, and Plaintiff requested a hearing,
Tr. 119-20. On April 25, 2017, a hearing was held before an
Administrative Law Judge (“ALJ”) and testimony
was taken from Plaintiff, who was represented by counsel, and
from a vocational expert (“VE”). Tr. 38-76. On
June 28, 2017, the ALJ issued an unfavorable decision finding
Plaintiff was not disabled. Tr. 16-30. Plaintiff requested
review of the decision from the Appeals Council, Tr. 169-83,
and the Appeals Council denied review on April 26, 2018,
making the ALJ's decision the Commissioner's final
decision for purposes of judicial review, Tr. 1-6. Plaintiff
brought this action seeking judicial review of the
Commissioner's decision in a Complaint filed June 21,
2018. ECF No. 1.
April 1964, Plaintiff was 50 years old on her alleged onset
date of June 9, 2014. Tr. 228. In her August 18, 2014
Disability Report-Adult Plaintiff noted that she completed
the 12th grade and had not completed any type of specialized
job training or vocational school. Tr. 233. She listed her
past relevant work (“PRW”) as: law firm legal
secretary (1999-2003), greenhouse supervisor (2002-2011), and
Department of Agriculture egg grader (Sept. 2011-June 9,
2014). Id. Plaintiff indicated that she stopped
working on June 9, 2014, because of her medical conditions of
back and neck problems. Tr. 232.
January 27, 2015 Disability Report-Appeal, Plaintiff
indicated that as of August 15, 2014 she had a new mental
limitation. Tr. 269. Plaintiff noted: “I am afraid to
drive myself and extremely paranoid of riding in a vehicle
since being able to begin driving. Increasing
nightmares.” Id. Regarding her activities
Plaintiff indicated that the injuries she sustained in the
motor vehicle accident compromised her abilities and her
condition was “chronic thus limiting day-to-day
activities.” Tr. 272.
subsequent Disability Report-Appeal dated May 28, 2015,
Plaintiff indicated that she was diagnosed with PTSD on
February 27, 2015. Tr. 288. She also noted that her
“back injury (T-4 fracture) causes pain with any
increased activity; [she is] not able to sit for long periods
of time.” Id. Plaintiff also noted that she
cannot return to her prior employment and her injury
prevented her from seeking employment. Id. Plaintiff
indicated that in February 2015 she had cancer surgically
removed from her lower right leg and skin grafted from her
upper right leg. Tr. 289. Plaintiff noted that she is unable
to complete daily activities in a timely manner and
activity-even carrying a purse-increases pain. Tr. 293.
Relevant Medical History
was seen on February 21, 2014 by Dr. James A. Loging of
Palmetto Bone and Joint-Newberry for her complaints of left
knee pain. Tr. 435. Plaintiff stated that she had been
“having problems for a long time and this is gradually
getting worse.” Id. Plaintiff opted to proceed
with an injection rather than an arthroscopy. Id.
Plaintiff returned for follow-up on June 27, 2014 and noted
that the injection had helped but the pain had returned. Tr.
434. Plaintiff received another injection. Id.
was involved in a motor vehicle accident (“MVA”)
on June 9, 2014 and was transported via ambulance to the
Newberry County Memorial Hospital with a laceration to her
head and complaints of neck pain. Tr. 418. Plaintiff's
laceration was sutured, and she was discharged with
instructions regarding wound care and not to work the next
day. Id. That same day Plaintiff was sent to Laurens
County Memorial Hospital to undergo a CT scan of her head.
Tr. 419. Report of the CT scan indicated that “No acute
intracranial hemorrhage is seen.” Tr. 392.
16, 2014 Plaintiff was seen for follow-up at Newberry
Internal Medicine for removal of sutures and continued
complaints of neck pain and stiffness. Tr. 405. Plaintiff
reported that she had not been taking any pain medication and
was hesitant to take narcotic pain medication. Id.
Plaintiff was given a course of muscle relaxers and advised
not to return to work at that time due to the nature of her
job. Id. Plaintiff returned on June 25, 2014 and
reported that she “continues to experience some pain
between her shoulder blades into the thoracic spine, but
reports that the muscle spasms and cramping are much better.
She no longer has a headache.” Tr. 407. Plaintiff was
sent for a CT scan of her neck for further evaluation.
26, 2014 Plaintiff returned to Newberry County Memorial
Hospital for CT scans of her neck and thoracic spine. Tr.
412-13. There were no acute findings within the cervical
spine. Tr. 412. The impression of the CT of the thoracic
spine was as follows: “Mild superior end plate
depression of T-4 which could be related to a mild acute or
chronic compression fracture. No. other abnormality is
identified.” Tr. 413.
was seen on July 24, 2014 by Dr. Karl Lozanne of Columbia
Neurosurgical Associates, P.A. Tr. 426-27. Plaintiff
complained of neck and upper back pain. Tr. 426. Dr. Lozanne
examined Plaintiff and reviewed her CT scans. He indicated
that the “subtle compression of the T4 vertebral
body” appeared to be a chronic condition as there was
no significant loss of height, no retropulsed fragment, and
no apparent signs of stenosis. Tr. 426-27. Dr. Lozanne
indicated that physical therapy might be beneficial and
referred her to physical therapy and for massage of the
cervical and thoracic spine. Tr. 427. He also provided her
with a prescription for muscle relaxers. Id.
January 27, 2015 follow-up appointment with Dr. Mark A. Davis
of Newberry Internal Medicine Plaintiff indicated an aversion
to driving and riding in a car. Tr. 489-90. She noted she had
flashbacks from the injury and difficulty sleeping. Tr. 490.
On physical examination Dr. Davis noted that her station and
gait were a “little bit awkward and stiff but she is
stable walking. She cannot bend. She has a stiffness of her
spine and lack of mobility.” Id. Dr.
Davis's impression was: “1. Evolving post-traumatic
stress disorder which will need to be dealt with with
counseling. 2. Traumatic injury to the spine with residual
disability - - I think she probably could benefit by voca
rehab and continued to occupational and physical
April 13, 2015, Plaintiff had a Psychiatric Evaluation at
Behavioral Health Services with Dr. John Steele. Tr. 501-04.
Dr. Steele's initial diagnostic impression related to a
clinical disorder was “Post-traumatic stress disorder,
history of alcohol use disorder mild.” Tr. 503. He
started Plaintiff on a trial of Zoloft 25 mg with a low-dose
of Ativan 0.5 mg to take as needed for breakthrough anxiety.
Id. He advised Plaintiff not to mix the Ativan with
alcohol and suggested she try over-the-counter melatonin to
help with insomnia. Tr. 503-04. Dr. Steele encouraged
Plaintiff to begin individual counseling and provided her
with a list of local counselors and he also advised her to
limit her caffeine consumption to help with her anxiety. Tr.
appeared with counsel for her administrative hearing in
Greenwood, South Carolina on April 25, 2017. Tr. 38. VE Dr.
Robert Brabham also appeared and testified. Id.
response to questions from the ALJ Plaintiff confirmed her
birthdate and address and testified that her current height
and weight was 5'1” and 113 pounds. Tr. 43-44.
Plaintiff testified that over the past year and a half she
lost about 35 pounds due to lymphoma which she stated was
“a relatively new diagnosis.” Tr. 44. Plaintiff
stated that every six weeks she was having blood work done
and a PET scan. As a result of her last PET scan she recently
had a colonoscopy that indicated she had diverticulitis. Tr.
45. Plaintiff testified that her lymphoma diagnosis was made
in October of the last year after an inconclusive biopsy of
one lymph node and removal of her left lymph node. Tr. 45-46.
Plaintiff confirmed that she has not done any treatment,
chemotherapy, or immunotherapy for lymphoma and at this point
she was being monitored. Tr. 46.
testified that she lived with her husband and no one else
lived at the residence. Tr. 46. She also confirmed that she
had a driver's license, but she testified that she did
not drive and has not driven since her accident due to PTSD.
Tr. 46-47. Plaintiff confirmed that she graduated from high
school, and when she worked for the USDA she “had an
egg grader's license.” Tr. 47-48. Plaintiff
testified that in 2002 she worked for Gregory Williams as a
legal secretary. Tr. 48. Plaintiff stated that she worked for
a number of years as a supervisor for Carter and Holmes
Incorporated, which was an orchid nursery. Tr. 48-49.
Plaintiff testified that she “ran the operation of nine
greenhouses and probably around 10 to 12 employees . . .
.” Tr. 49. Plaintiff confirmed she then worked for the
State of South Carolina and the Department of Agriculture as
an egg grader. Id. Plaintiff confirmed that she has
not worked since June 9, 2014. Tr. 50. Plaintiff confirmed
that she received short-term disability from the State of
South Carolina but her application for long-term disability
was denied. Tr. 50-51.
asked what prevented her from working, Plaintiff testified to
back and neck pain, PTSD, and being unable to drive. Tr.
51-52. Plaintiff also testified to having Raynaud's
syndrome and severe headaches. Tr. 52. Other than
the inability to drive, Plaintiff testified that her PTSD
also affected her daily activities because she becomes
frustrated and angry about not being able to do things she
would have normally been able to do without any problem. Tr.
53. Plaintiff testified to difficulties with concentration
and loss of sleep. Tr. 53-54. Plaintiff stated that her
lymphoma caused interruptions with sleep because she cannot
control her body temperature and she has “drenching
night sweats and chills.” Tr. 54. Plaintiff stated that
in early 2015 she started having the symptoms associated with
Raynaud's syndrome and her hands and fingers will go
white and numb. Id. Plaintiff testified that
symptoms were random and “it can happen several times a
week, sometimes it might only happen once every couple of
weeks.” Id. Plaintiff stated the symptoms
usually last “at least a couple hours.” Tr. 55.
Plaintiff testified that since the accident she experiences
headaches at least three times a week. Id. Plaintiff
stated that she experiences back pain in her upper mid back
and understands that she has a bone spur in that location.
Id. She stated that she experiences pain in her
“entire neck, but especially at the base of [her]
skull.” Id. Plaintiff testified that all of
her pain relates back to her motor vehicle accident.
Id. Plaintiff testified that she can stand or walk
for “maybe an hour at most” before needing to sit
down due to back pain. Tr. 56. She stated that it was the
same for sitting and described her pain as “a constant
chronic pain.” Id. Plaintiff testified she
could lift or carry “three to five pounds at
most.” Id. As an example of something she
lifted and realized that she should not have, Plaintiff
identified a gallon of water. Tr. 57. Plaintiff testified
that going back to the accident, her ability to stand, walk,
sit, or lift has never been better than as she currently
described. Id. Plaintiff testified that she takes
prescription Ibuprofen or Motrin, which at 800 milligrams is
a higher dosage than what is available over-the-counter.
Id. Plaintiff stated that she takes acetaminophen
for headaches and a prescription formulation of Excedrin
Migraine tablets. Tr. 58-59. Plaintiff testified that she is
not taking any medications for mental impairments currently.
Tr. 59. Plaintiff stated that she “stopped taking
everything that had been prescribed for [her] around July of
last year because [she] had some swelling in places and [she]
didn't know if the medications may have been affecting
[her] somehow.” Id. Plaintiff stated that she
had been prescribed Hydrocodone which is “highly
addictive and so [she was] just adamant that [she's] not
going to take anything more than [she has] to take.”
testified that on a typical day she wakes up, has coffee, and
watches the news. Tr. 60. Plaintiff stated that she may do
some spot sweeping or wash a few dishes. Id. She
stated that her husband takes her grocery shopping and they
try to coincide trips to the grocery store with her
doctor's appointments. Tr. 60-61. Plaintiff stated that
she has trouble with impatience when grocery shopping and
standing in line. Tr. 61. She also stated she was
uncomfortable being around people and crowds. Id.
Plaintiff testified that her husband “does all the
getting everything in the buggy, pushing the buggy, getting
it out of the buggy, into the car, he does all that.”
response to questions from her counsel Plaintiff testified
that her husband is employed with SCE&G and had been with
them for a number of years. Tr. 62. Plaintiff testified that
before the accident, when she got home from work, she would
“mow the grass, bring wood in for the fire, start[ ]
the fire, . . . straighten up, clean, cook.”
Id. Plaintiff stated that for outdoor chores, she
has a few plants that she waters. Tr. 63. Plaintiff testified
that she used to hunt and fish but can no longer do any of
that. Id. Plaintiff stated that her husband helps
her with cooking by lifting pots. Id. Plaintiff
testified that her PTSD problems apply to driving as well as
riding as a passenger and she gets very nervous, especially
at intersections. Tr. 63-64. Plaintiff confirmed that her
pain interferes with concentration, paying attention, and
memory. Tr. 64.
the VE testified Plaintiff stated in closing that she wanted
to return to work. Tr. 74. She testified: “I'd go
back to work as an egg grader tomorrow if I could do the job,
but I can't do it.” Id.
testified that Plaintiff's past work is described in the
Dictionary of Occupational Titles (“DOT”) as egg
grader, SVP of 2, light but performed occasionally as medium,
DOT number 529.687-074; greenhouse supervisor/manager, SVP of
7, medium, DOT number 405.131-010; and legal secretary, SVP
of 6, sedentary, DOT number 201.362-010. Tr. 66-67. The ALJ
asked the VE to assume a hypothetical individual of
Plaintiff's age, education, and past jobs limited to the
“light exertional level, frequent climbing of ramps and
stairs; occasional climbing of ladders, ropes, or scaffolds;
frequent stooping, kneeling, crouching, and crawling.”
Tr. 67. The ALJ asked the VE whether such an individual could
perform the past work. The VE responded that the legal
secretary position would be within those limits, and some egg
grader positions could be light, but jobs with the Department
of Agriculture would likely be medium. Tr. 67-68. The ALJ
confirmed that as generally performed, the positions of legal
secretary and egg grader would be available. Tr. 68. The ALJ
asked about other available work with no consideration of
transferable skills and the VE identified the following
categories as examples: assembler/fabricator jobs, light
exertion, SVP of 2, DOT number 739.687-078, with 360, 000
jobs available nationwide; hand packer jobs, light, SVP of 2,
DOT number 589.687-014, with approximately 400, 000
nationwide; and production inspectors, light, SVP of 2, DOT
number 529.687-114, with 200, 000 nationwide. Tr. 68-70. The
VE confirmed that his testimony was consistent with the DOT.
ALJ's second hypothetical he changed the first
hypothetical to only occasional stooping, kneeling,
crouching, and crawling and added a “limitation to
simple routine tasks; time off task would be accommodated by
normal breaks; only occasional interaction with the public;
and no driving or operation of heavy equipment.” Tr.
70-71. The ALJ asked if the hypothetical individual could
perform any of the past jobs and the VE responded in the
negative but stated that “the jobs that [he] cited in
response to the first hypothetical continue to meet the
second one as well.” Tr. 71.
ALJ's third hypothetical he asked if he added either of
the following two limitations-three absences a month or 20
percent time off task in addition to normal breaks- could the
hypothetical individual perform any competitive employment.
Tr. 71. The VE responded in the negative but noted that the
limitations were not addressed in the DOT but are
“addressed in some labor publications and other
articles and numerous job descriptions.” Tr. 72. The
ALJ noted that he was not asking about sedentary work.
counsel asked, “if a person can only function for up to
a third of the day, would there be any jobs in the national
economy that are out there?” Tr. 73. The VE responded
in the negative, noting that the ALJ had already posed 20
percent, so 33 percent would be worse. Id. Counsel
asked about two-thirds of the day, and the VE again responded
in the negative. Id.
Commissioner's Findings In his June 28, 2017 decision,
the ALJ made the following findings of fact and conclusions
1. The claimant meets the insured status requirements of the
Social Security Act through December 31, 2019.
2. The claimant has not engaged in substantial gainful
activity since June 9, 2014, the alleged onset date (20 CFR
404.1571 et seq.).
3. The claimant has the following severe impairments: spine
disorder; dysfunction of major joints; and PTSD (20 CFR
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(b) except the claimant can frequently climb
ramps and stairs; occasionally climb ladders, ropes, or
scaffolds; and occasionally stoop, kneel, crouch, and crawl.
The claimant can perform simple, routine tasks. The
claimant's time off task can be accommodated by normal
breaks. The ...