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Mayer v. Saul

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

September 24, 2019

Lori L. Mayer, Plaintiff,
Andrew M. Saul, Commissioner of Social Security, Defendant.


          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.


         The plaintiff filed an application for disability insurance benefits (“DIB”) on September 14, 2015, alleging that she became unable to work on September 11, 2015. The application was denied initially and on reconsideration by the Social Security Administration. On February 29, 2016, the plaintiff requested a hearing. On May 2, 2017, an administrative hearing was held at which the plaintiff, who was represented by counsel, and John S. Wilson, an impartial vocational expert, appeared and testified in Charleston, South Carolina. On September 20, 2017, 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. 15-26). 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 September 6, 2018 (Tr. 1-6). 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 meets the insured status requirements of the Social Security Act on December 31, 2019.
(2) The claimant has not engaged in substantial gainful activity since September 11, 2015, the alleged onset date (20 C.F.R. § 404.1571 et seq.).
(3) The claimant had the following severe impairments: morbid obesity, restless leg syndrome (“RLS”), peripheral vascular disease (“PVD”), Raynaud's phenomenon, Sjorgren syndrome, Achilles tendinitis, and lower extremity neuropathy (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, 404.1526).
(5) After careful consideration of the entire record, the undersigned finds the claimant has the residual functional capacity to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) except the claimant can only occasionally use foot controls, never climb ladders, ropes, or scaffolds, and occasionally perform all other postural activities. The claimant requires to use a cane to ambulate and is unable to walk on uneven surfaces. Further, the claimant must avoid close proximity to sources of extreme heat or cold, and to mobile machinery, and must avoid work at unprotected heights.
(6) The claimant is capable of performing past relevant work as a receptionist, call center representative, and program coordinator. This work does 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 has not been under a disability, as defined in the Social Security Act, from September 11, 2015, through the date of this decision (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.


         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).


         The plaintiff was 30 years old on her alleged disability onset date (September 11, 2015) and 32 years old on the date of the ALJ's decision (September 20, 2017) (Tr. 163). She attended two and a half years of college and obtained an assistant nursing certificate. She has past relevant work experience as a receptionist, call center representative, program coordinator, and assistant manager (Tr. 25, 40, 205-06).

         On December 10, 2014, the plaintiff was admitted to Summerville Medical Center for a followup sleep study. She was found to have moderate sleep apnea syndrome based on a sleep study conducted in April 2013. She did not tolerate CPAP but underwent a basal tongue reduction in August 2014. She was feeling better, and the followup study indicated that she still suffered from mild/moderate sleep apnea (Tr. 369-70).

         On January 29, 2015, the plaintiff's restless leg syndrome (“RLS”) and periodic limb movement disorder was evaluated by Wayne Vial, M.D. She reported that her RLS symptoms occurred in the evening when she was watching television. Dr. Vial observed that she appeared to have a clear cut case of RLS “although it does tend to occur somewhat earlier than is frequently the case.” She had tried ropinirole but could not tolerate it due to side effects, and Dr. Vial planned to start her on pramipexole, which “could cause the same side effects.” Dr. Vial suspected her “sleep disordered breathing could be contributing to her daytime sleepiness” (Tr. 405-11). .

         On February 18, 2015, the plaintiff's bilateral plantar fasciitis was reported to be somewhat improved. She was “using the gel, taking the pills ” and was prescribed a cam walker boot (Tr. 401). On March 5, 2015, she had been wearing a boot all day for two weeks and experienced pain for about an hour upon taking it off. She reported that when wearing the boot her foot was “fine.” James Cawthorne, DPM, opined that the plaintiff was “doing great” (Tr. 402). On April 16, 2015, she reported worsening anxiety and mood over the past two months triggered by work demands and stressors. She felt “pressured about having to take time off for appts.” Her RLS symptoms were worsening during the day (Tr. 468).

         On April 21, 2015, Dr. Vial noted that the plaintiff continued to have daytime sleepiness (Tr. 415)

         On June 23, 2015, the plaintiff presented to Low Country Rheumatology to discuss her lab work. She continued “to have severe fatigue, occurring daily.” Gregory Niemer, M.D., evaluated her for a potential underlying autoimmune disease and assessed Sjogrens syndrome, Raynaud's phenomenon, RLS, and a skin problem (Tr. 439-42).

         On July 22, 2015, Charles Kelly, M.D. at Tidewater Neurology assessed peripheral neuropathy, RLS, and multiple sclerosis. The plaintiff reported receiving partial relief from her leg discomfort when she got up and walked or just moved her legs while in the bed (Tr. 456). Interpreting a July 2015 EMG and NCV testing, Dr. Kelly explained that the study was “consistent with a moderate sensorimotor polyneuropathy with absent bilateral lower extremity sensory responses” (Tr. 553). On August 4, 2015, Dr. Kelly noted that the plaintiff recently developed morning sedation and some lower extremity swelling related to her medication (Tr. 562). Her anxiety was improved on August 17, 2015, but she continued “to struggle at work alertness and wakefulness” (Tr. 474). On August 21, 2015, she reported to Dr. Kelly that her medications caused her to retain fluid. She was very puffy, out of breath, dizzy, in pain, and could barely drive to her appointment (Tr. 566).

         On August 25, 2015, the plaintiff saw Dr. Kelly and reported that gabapentin caused significant swelling even at a low dosage, forcing her to discontinue it. She noted that she had gained 20 pounds in just the last three to four weeks. Dr. Kelly started her on Lasix, planned on a neuropathic pain cream for her feet, and decided to “stay away from any oral medications.” The plaintiff weighed 434 pounds, was 5'5" tall, and had a body mass index (“BMI”) of 72.21 (Tr. 570-72).

         On September 3, 2015, Skye Deberry, M.D., saw the plaintiff as a new patient and assessed Wilson's Disease after noting elevated copper levels. Examination revealed a normal brain MRI. She had normal back, musculoskeletal, extremities, and neurological findings (Tr. 578-79, 584). The plaintiff followed up with Dr. Deberry on October 13, 2015; November 11, 2015; November 25, 2015; February 17, 2016; and June 14, 2016 for multiple conditions (Tr. 787, 789, 791, 793, 795). On October 13, 2015, examination showed she had normal strength; normal neurological findings; and symmetrical muscle mass, muscle power, and tone in her extremities (Tr. 795).

         On November 6, 2015, state agency medical consultant Cleve Hutson, M.D. conducted a physical residual functional capacity (“RFC”) assessment in which he indicated that the plaintiff could meet the demands of sedentary work with some postural limitations. (Tr. 71-73). Dr. Hutson wrote:

[C]laimant reports that she is unable to stand for long periods of time, has trouble with mobility, she has trouble lifting bending standing reaching. These statements of limitations are partially credible. [C]laimant has a BMI of 75, and she had 13/18 trigger points positive, her inflammatory work up was neg, [and] the ...

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