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 Sections 205(g) and
1631(c)(3) of the Social Security Act, as amended (42 U.S.C.
405(g) and 1383(c)(3)), to obtain judicial review of a final
decision of the Commissioner of Social Security denying her
claims for disability insurance benefits and supplemental
security income benefits under Titles II and XVI of the
Social Security Act.
plaintiff previously applied for disability benefits in 2006,
which was denied (Tr. 138, 337-38). The plaintiff filed
applications for disability insurance benefits
(“DIB”) and supplemental security income
(“SSI”) benefits on January 14, 2015. In both
applications, the plaintiff alleged that she became unable to
work on July 1, 2008. Through her attorney, the plaintiff
amended the alleged disability onset date to February 27,
2014. Both applications were denied initially and on
reconsideration by the Social Security Administration. On
November 24, 2015, the plaintiff requested a hearing. The
administrative law judge (“ALJ”), before whom the
plaintiff and Julie Bose, an impartial vocational expert,
appeared in a video hearing on June 29, 2017, considered the
case de novo, and on August 31, 2017, found that the
plaintiff was not under a disability as defined in the Social
Security Act, as amended (Tr. 24-37). 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 25, 2018 (Tr. 1-6). 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 meets the insured status requirements of the
Social Security Act through December 31, 2017.
(2) The claimant has not engaged in substantial gainful
activity since February 27, 2014, the amended alleged onset
date (20 C.F.R §§ 404.1571 et seq.,
416.971 et seq.).
(3) The claimant has the following severe impairments:
disorder of the back, degenerative joint disease, a history
of traumatic brain injury, affective/mood disorder,
post-traumatic stress disorder, and a history of drug
use/dependence (20 C.F.R. §§ 404.1520(c),
(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 C.F.R. Part 404, Subpart
P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525,
416.920(d), 416.925, 416.926).
(5) After careful consideration of the entire record, I find
that the claimant has the residual functional capacity to
lift/carry/push/pull 20 pounds occasionally and 10 pounds
frequently, stand and/or walk six hours total in an
eight-hour workday, and sit for six hours total in an
eight-hour workday. In addition, the claimant can
occasionally climb ramps and stairs, can never climb ladders,
ropes, or scaffolds, and can occasionally balance, stoop,
kneel, crouch, and crawl. Further, she should have no more
than occasional exposure to unprotected heights and dangerous
machinery. Furthermore, the claimant retains the mental
residual functional capacity to understand, remember, and
carry out simple tasks and instructions; she can concentrate,
attend, and persist on simple tasks; she can interact
adequately with supervisors and co-workers, but never the
general public; and she can respond appropriately to simple,
routine, workplace changes. Finally, the claimant will miss
an occasional day of work because of mental health issues,
with occasional defined as once every one to two months. The
claimant's physical limitations are based on the State
agency assessments at ¶ 9A and B10A, while her mental
limitations are based on the State agency assessments at
¶ 3A, B4A, B9A, and B10A.
(6) The claimant is unable to perform any past relevant work
(20 C.F.R. §§ 404.1565, 416.965).
(7) The claimant was born on April 10, 1969, and was 44 years
old, which is defined as a younger individual age 18-49, on
the amended alleged disability onset date (20 C.F.R.
§§ 404.1563, 416.963).
(8) The claimant has at least a high school education and is
able to communicate in English (20 C.F.R. §§
(9) 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).
(10) 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. §§
404.1569, 404.1569(a), 416.969, 416.969(a)).
(11) The claimant has not been under a disability, as defined
in the Social Security Act, from February 27, 2014, through
the date of this decision (20 C.F.R. §§
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) and §
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. §§
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,
416.920. If an individual is found not disabled at any step,
further inquiry is unnecessary. Id. §§
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.
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).
plaintiff was 44 years old on her amended alleged disability
onset date (February 27, 2014) and 48 years old at the time
of the ALJ's decision (August 31, 2017). She completed
her education through two years of college, and she has past
relevant work as a certified nursing assistant
(“CNA”), telemarketer, and customer service clerk
(Tr. 34, 52, 82-83, 342-43).
September 10, 2013, the plaintiff was seen at Baptist
Hospital emergency room (“Baptist ER”) for an
anxiety reaction because her ex-boyfriend had chased her
while she was at Transitions, a homeless shelter. She was
given Ativan and Zofran IV and had marked improvement. She
was discharged to follow up with her primary care physician
and Transitions staff (Tr. 1009-10).
February 27, 2014, the plaintiff was admitted to Richland
Hospital after an assault by her boyfriend that caused jaw
fractures and resulted in surgery to repair her jaw. A CT
scan of her cervical spine revealed multilevel degenerative
disc facet disease, especially at ¶ 5-6 and C6-7 with
central canal narrowing, greatest at ¶ 6-7. There was
neural foraminal narrowing bilaterally at ¶ 4-5 and on
the right at ¶ 6-7 (Tr. 556, 591). On March 2, 2014, an
MRI of her brain showed a diffuse axonal injury (Tr. 555).
March 19, 2014, the plaintiff was treated at Baptist ER for
jaw pain because she had pulled a surgical wire out. She had
taken Norco, was very sleepy, and complaining of chest pain
April 12, 14, and 23, 2014, the plaintiff was seen at
Richland Hospital for post-surgery jaw pain (Tr. 750, 753,
756). On April 14, 2014, she also sought treatment at
Lexington Medical Center for facial pain after her boyfriend
hit her in the chest and on the side of her face. On
examination, she was alert and oriented. Her mood, affect,
and behavior were normal. She was prescribed Percocet (Tr.
880-82). On April 15, 2014, she was seen at Baptist Hospital
ER for an anxiety reaction after an altercation with her
boyfriend. She was given Ativan, which made her feel much
better (Tr. 1014).
5, 2014, the plaintiff was seen at Baptist ER after she ran
away from someone and after having an altercation with her
ex-husband. She was very anxious. She was given medication
for anxiety and pain, and her symptoms improved (Tr. 1016).
On May 6, 2014, she had anxiety attacks, palpitations, and
face pain after being punched in the face by her
ex-boyfriend. Examination was generally normal. She was
slightly anxious. Diagnoses were anxiety and status
post-assault with facial contusions. She was prescribed Norco
and Ativan (Tr. 1018). On May 17, 2014, the plaintiff felt
she was having tachycardiac spells due to anxiety or due to
her supraventricular tachycardia (“SVT”). She had
an EKG and was watched for two hours and had no tachycardic
spells while on the monitors. Clinical impression was
anxiety, and Vistaril was prescribed (Tr. 1020-21). On May
22, 2014, the plaintiff was seen at Baptist ER after she had
taken five or six Ativan due to facial pain. She had an
altered mental status due likely due to the medication. On
first examination, she was drowsy and had slurred speech.
Upon re-examination, she was alert and stated she could call
her sister to pick her up. She was advised to take her
medications only as prescribed and was discharged in stable
and improved condition (Tr. 1024-25). On May 23, 2014, she
was seen at Baptist ER for palpitations, chronic anxiety, and
an abrasion on her right upper extremity. On examination,
mild anxiety was noted. She received a prescription for
Ultram, was discharged to home, and was asked to follow up
with her primary care physician (Tr. 1029).
24, 2014, the plaintiff was seen multiple times within a
24-hour period at the Richland Hospital ER. She had vague
complaints, which kept changing. She first claimed to have
chest pain and that she had been bitten by animals, then
complained of a bruise on her arm, and then complained that
she had facial pain that had resolved. She was defensive and
called the staff names when they asked her why she repeatedly
returned to the ER. She was discharged with a clinical
impression of “malingering” (Tr. 763-64). On May
26, 2014, the plaintiff was seen at the Richland Hospital ER
for chest palpitations related to assaults and suicidal
ideation. On examination, she was cooperative, and her
behavior was appropriate. Her affect was constricted, and
mood was congruent. She had normal speech. Thought process
was linear, logical, and goal-directed. She had no delusions
or hallucinations. Her insight and judgment were poor.
Attention and concentration were good, and memory was intact.
She was diagnosed with chronic depression. She was discharged
and outpatient followup was best indicated (Tr. 769-73). She
also went to Baptist ER on May 26th with abrasions
on both knees. It was noted that she had a history of
psychiatric disorders, was homeless, and could not find
shelter from the rain. She was evaluated by psychiatry, who
felt she was alright to go home. She received a dose of
Flexiril and Tylenol, and her symptoms resolved (Tr.
28, 2014, the plaintiff was evaluated at the Columbia Area
Community Mental Health Clinic (”CAMHC”) after
walking into the path of a car. She heard voices that sounded
like her own voice. Upon receiving records from Richland, it
was noted that over the weekend and on the 28th
her thoughts of self-harm varied with each clinician she
talked to. There was no indication that she placed herself in
front of the car (Tr. 1128-29).
6, 2014, at Richland ER, the plaintiff reported dental pain,
and she had an anxious appearance. It was noted that she had
more than a dozen visits to the ER over the past month. She
was discharged home and advised to follow up with an oral
surgeon (Tr. 776-77). On June 11 and 12, 2014, she returned
to Baptist ER and Richland Hospital, respectively, for
palpitations and anxiety (Tr. 779, 1037). On June 15, 2014,
she was seen at Lexington Medical Center for facial pain.
Examination was generally normal with facial pain upon
palpation (Tr. 889-93).
16, 2014, the plaintiff was treated at CAMHC for suicidal
ideation. She had depressive symptoms of insomnia,
nightmares, and flashbacks. She had poor judgment and poor
insight. Her ...