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Pear v. Saul

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

August 28, 2019

Pamela Colleen Pear, Plaintiff,
v.
Andrew M. Saul, 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 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for supplemental security income benefits under Title XVI of the Social Security Act.

         ADMINISTRATIVE PROCEEDINGS

         The plaintiff protectively filed an application for supplemental security income (“SSI”) benefits on August 21, 2014, alleging disability commencing August 1, 2014. The application was denied initially and on reconsideration by the Social Security Administration. On July 29, 2015, the plaintiff requested a hearing. The administrative law judge (“ALJ”), before whom the plaintiff and Dawn Bergren, an impartial vocational expert, appeared during a hearing on February 15, 2017, considered the case de novo, and on August 16, 2017, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 18-28). 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 July 28, 2018 (Tr. 1-5). 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 has not engaged in substantial gainful activity since August 21, 2014, the application date (20 C.F.R. § 416.971 et seq.)
(2) The claimant has the following severe impairments: cerebrovascular accident (CVA), a history of deep vein thrombosis (DVT), and Factor C coagulation disorder (20 C.F.R. § 416.920(c)).
(3) The claimant does not have an impairment or combination of impairments that meets or medically equals the the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926).
(4) 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 C.F.R. § 416.967(b) except the claimant would need to alternate between sitting and standing every 30 minutes, provided she is not off task. She could never operate foot controls with her right leg; never climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs; occasionally balance on flat, dry, and level surfaces, but never on wet or uneven surfaces. She would need to utilize both hands to handle objects greater than 10 pounds. She should never be exposed to open, moving, mechanical parts or hazardous machinery and never be exposed to unprotected heights. She can read ordinary newspaper or book print and avoid normal hazards in the workplace. She would be absent from work 1 day per month.
(5) The claimant is unable to perform any past relevant work (20 C.F.R. § 416.965).
(6) The claimant was born on January 2, 1967, and was 47 years old, which is defined as a younger individual age 18-49, on the date the application was filed. The claimant subsequently changed age category to closely approaching advanced age (20 C.F.R. § 416.963).
(7) The claimant has a limited education and is able to communicate in English (20 C.F.R. § 416.964).
(8) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(9) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. § 416.969, 416.969(a)).
(10) The claimant has not been under a disability, as defined in the Social Security Act, since August 21, 2014, the date the application was filed (20 C.F.R. § 416.920(g)).

         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. § 1382c(a)(3)(A), (H)(i), 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. § 416.905(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. § 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 416.920(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 born on January 2, 1967, and was 47 years old on the date the application was filed (August 21, 2014) and 50 years old on the date of the ALJ's decision (August 16, 2017). She attended school through the eleventh grade and has past relevant work as a kitchen helper, short order clerk, and waitress (Tr. 80, 190).

         On August 20, 2014, the plaintiff presented to Nason Medical Center with left leg swelling and knee pain for two days. Her blood pressure was 133/82. She had tenderness with mild edema to the medial aspect of the mid left thigh extending to the popliteal fossa. She was assessed with left leg pain and swelling and deep vein thrombosis (“DVT”). She had an ultrasound that was positive for DVT. She was referred to Gordon Thompson, M.D. (Tr. 257-78).

         On August 28, 2014, the plaintiff was prescribed Lovenox and warfarin for DVT at Palmetto Primary Care (Tr. 381-82).

         The plaintiff was admitted to Trident Medical Center on September 7 through 9, 2014. She was found to have had a stroke after she presented with left-sided facial droop and weakness. An MRI confirmed a right lacunar ischemic infarct. She underwent CT angiography of head and neck, carotid doppler, and echocardiogram, which showed no acute sources of clot. Home health physical therapy was recommended. Discharge diagnoses were acute cerebral vascular accident (“CVA”), diabetes mellitus, DVT, uncontrolled hypertension, and hyperlipidemia. At discharge, she continued to have 4/5 residual left-sided weakness and facial droop but overall improvement. The discharging physician recommended she follow up with outpatient medical appointments and comply with her medication regimen. He also recommended she exercise, quit smoking, and limit caffeine intake. Within a week, hospital physicians described her CVA as resolved (Tr. 285-90, 314-15, 331-37, 365, 484).

         In a function report dated September 15, 2014, the plaintiff described her daily activities as caring for her medical needs, eating breakfast, cleaning, and straightening the house if she was expecting company. Although she claimed she needed assistance with personal care, she could prepare simple and multi-course meals. She could mow her lawn, but it tired her out. She cleaned every other day, did her laundry on the weekends, and mowed the lawn with assistance every other weekend. The plaintiff shopped in stores for clothing for herself and for her children and for personal items. Her hobbies included watching television, sewing, and fixing her children's hair if her hands were not painful. The plaintiff's social activities included talking on the telephone and walking to a friend's house to visit about once a week. She did not indicate that she used a cane (Tr. 204-11).

         On October 13, 2014, the plaintiff reported to Dr. Thompson that she had balance issues and pain in her left leg from DVT. Disability paperwork was completed for short term disability due to pain in her leg. Dr. Thompson noted that the paperwork asked if the condition was permanent, to which he replied that it was short term. She had pain with prolonged standing but was encouraged to become “MORE active.” On examination, she had decreased pulse in left foot and a potential pre-ulcerative callous on her heel. Dr. Thompson assessed improving DVT, pain in limb, and new peripheral vascular disease (Tr. 362-63).

         On January 7, 2015, at the state agency's request, Adebola Rojugbokan, M.D., evaluated the plaintiff in a consultative neurological examination. The plaintiff had an acute stroke and complained of residual weakness and falls. She reported she was unable to work due to weakness on one side of the body and could not perform the kind of work she used to do. Her blood pressure was 150/90. She walked with a slightly antalgic gait with a limp favoring the right leg. She had normal ability to use her hands and arms with grip strength of 4/5 on the right and 5/5 on the left. Sensation was intact but decreased on the right side. She had slight muscular weakness on the right lower extremity about 4/5, and 5/5 strength in the left lower extremity. She had difficulty tandem walking but was able to perform heel-to-shin with the left but was abnormal on the right. Finger to nose movement was slightly diminished on the right. Overall, the plaintiff's physical examination was normal on the left side but slightly abnormal on the right side. Dr. Rojugbokan observed that the plaintiff did not use an assistive device for ambulating. Dr. Rojugbokan assessed DVT, insulin-dependent diabetes, high blood pressure, hyperlipidemia, and history of stroke with right-sided weakness. She also smoked. Dr. Rojugbokan stated that the plaintiff had no problems sitting, was able to stand for about ten to 15 minutes, and had difficulty lifting or carrying any object with the right hand (Tr. 342-45).

         On January 15, 2015, the plaintiff was evaluated by Timothy Beatty, D.O., at Trident Medical Center for lightheadedness that had lasted three days. She reported chronic balance problems and high blood pressure. She was on Xarelto and had recently started hypertensive medications. Her blood pressure was 188/110. The plaintiff had normal extremities, normal back, intact cranial nerves, normal speech, and no motor or sensory deficits. The plaintiff's glucose was 307. Due to a history of a headache and dizziness, a CT scan of her head was ...


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