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Gilchrist v. Saul

United States District Court, D. South Carolina, Anderson/Greenwood Division

September 27, 2019

Linda Diane Gilchrist, Plaintiff,
v.
Andrew Saul, Commissioner of the Social Security Administration, Defendant.

          ORDER AND OPINION

         The matter before the court is a review of the Magistrate Judge’s Report and Recommendation (“Report”) filed on September 11, 2019. (ECF No. 48.) The Report addresses Plaintiff Linda Diane Gilchrist’s claim for disability insurance benefits (“DIB”) and recommends that the court affirm the decision of the Commissioner of Social Security Administration (“the Commissioner”). (ECF No. 10-2 at 8-10.) For the reasons stated below, the court ACCEPTS the Report, and AFFIRMS the Commissioner’s final decision.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The Report sets forth the relevant facts and legal standards, which this court incorporates herein without a full recitation. (ECF No. 48.) On October 6, 2014, Plaintiff filed a DIB application, alleging that her disability left her unable to work as of February 7, 2013. (ECF No. 10-5 at 13-15.) Upon the denial of her DIB application, Plaintiff appeared at a hearing before an administrative law judge (“ALJ”) on September 7, 2017. (ECF No. 10-2 at 31-69.) The ALJ issued an “unfavorable decision” as to Plaintiff’s disability status on November 20, 2017, finding that she met the insured status requirements under the Social Security Act, had not engaged in substantial gainful activity since her alleged disability onset date, had severe impairments of degenerative disc disease and degenerative joint disease (ECF No. 10-2 at 13), but also concluding that her residual functional capacity (“RFC”) allowed her to perform sedentary work. (Id. at 16). Age, education, work experience, the RFC, and testimony provided by a vocational expert are the factors that the ALJ cited in determining that Plaintiff is capable of sedentary work. (Id. at 23.) The ALJ’s decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff’s subsequent appeal. (Id. at 2-7.)

         Plaintiff filed an action pursuant to 42 U.S.C. § 405(g) on July 31, 2019, seeking judicial review of the Commissioner’s final decision. (ECF No. 1.) On November 29, 2018, the Commissioner filed an Answer. (ECF No. 9.) The court issued three orders granting Plaintiff’s Motions for Extension of Time to file Plaintiff’s brief, and in the third order, noted that “no further extension will be granted barring extraordinary circumstances.” (ECF Nos. 15, 18, 21.) Plaintiff’s brief was due on or before March 15, 2019. (ECF No. 21.) The Magistrate Judge issued a Report on March 27, 2019, that included a deadline for specific objections by April 10, 2019. (ECF No. 24.) On March 11, 2019, Plaintiff untimely filed both the brief and the objection with a Motion for Leave to File out of time. (ECF Nos. 26-28.) The court denied Plaintiff’s Motion for Leave to File on April 19, 2019, (ECF No. 29) to which Plaintiff filed a Motion for Reconsideration (ECF No. 34). The court issued an order on June 28, 2019, granting Plaintiff’s motion and vacating the order on Plaintiff’s Motion for Leave to File.[1] (ECF No. 41.) Accordingly, on July 2, 2019, the court dismissed the initial Report (ECF No. 24) and referred the case back to the Magistrate Judge with renewed deadlines for briefing. (ECF No. 42.) The parties filed their respective briefs on August 9 and August 23, 2019. (ECF Nos. 44, 46.)

         The Report provides the parties’ arguments as follows: (1) Plaintiff asserts that the ALJ’s decision is not supported by substantial evidence because “the ALJ did not follow the ‘slight abnormality standard’ by failing to find that Plaintiff’s combination of depression/anxiety, COPD, and bronchitis were severe impairments” and (2) that the RFC is “not supported by substantial evidence because they fail to account for time off task and/or work absences . . . [and] failed to limit Plaintiff to unskilled work as a result of her pain. (ECF No. 48 at 3 (citing ECF No. 26 at 16-24).) The Commissioner contends that the ALJ applied the proper standards regarding Plaintiff’s depression, anxiety, COPD, and bronchitis, and that substantial evidence supports the RFC determination. (ECF No. 48 at 3-4 (citing ECF No. 44 at 10-20).)

         The Magistrate Judge issued a Report on September 11, 2019, recommending that the court affirm the Commissioner’s final decision because Plaintiff, who has the burden of proof, did not direct the court to any evidence to establish that the ALJ failed to consider or improperly summarize her alleged disabilities. (ECF No. 48 at 24-25.) Specifically, as to the ALJ’s RFC determination:

The [c]ourt’s own review of the record reveals that none of Plaintiff’s treatment providers provided any opinion as to Plaintiff’s time off task, absences, or inability to perform anything more detailed than unskilled work. Moreover, at Step 2, the ALJ found Plaintiff had no limitations in understanding, remembering, or applying information and only mild limitations in her ability to concentrate, persist, or maintain pace . . . and Plaintiff has not challenged these findings. Plaintiff has failed to direct the Court to any evidence suggesting that she is incapable of performing sedentary work as additionally limited by the ALJ in this case.

(ECF No. 48 at 17 (citing ECF No. 10-2 at 14-15).)

         Moreover, the Report explains that, while the ALJ’s RFC revealed objective medical evidence of medical impairments that might cause pain or symptoms alleged by Plaintiff, her medical records did not corroborate her disability allegations. (ECF No. 48 at 23 (citing ECF No. 10-2 at 16-19 (“I find the evidence shows the symptoms have not been as limiting as the claimant has alleged. The symptoms reduce the claimant’s ability for work-related activities to some extent, but the claimant remains capable of performing within the RFC.”).)

         As to the issue of whether the ALJ failed to find Plaintiff’s combination of depression, anxiety, COPD, and bronchitis to be “severe” impairments, the Magistrate Judge concluded that “Plaintiff, who has the burden at Steps 1 through 4 of the five-step sequential evaluation process . . . has failed to direct the [c]ourt to any evidence of record that the ALJ failed to consider or improperly summarized the issues” that would require remand. (Id. at 25.) The Report provides an excerpt of the ALJ’s determination:

The impairments of hypertension, gastroenteritis, COPD, anxiety and depression do not significantly limit the claimant’s ability to perform basic work activities. The impairments are “not severe” because medical and other evidence establishes only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on claimant’s ability to work.

(ECF No. 10-2 at 14 (citations omitted).)

         The Magistrate Judge found that Plaintiff merely proffered self-serving evidence such as her testimony or statements that she made in disability and function reports. (ECF No. 48 at 17 (citing 26-1 at 19.) In contrast, the record illustrates the degree of Plaintiff’s alleged limitations, e.g., her diagnoses of acute bronchitis did not show “that [her] bronchitis was a chronic impairment, particularly where Plaintiff responded to antibiotics on each occasion and never appeared to be in any respiratory distress during any medical visit.” (ECF 48 at 18 (citing 26 at 19; 10-21 at 15-7, 28-31, 33-36; 10-22 at 9-13, 30-34, 36-40; 10-26 at 51-55).) Moreover, with respect to Plaintiff’s alleged disabilities, the Magistrate Judge found that “February 2016, encounter notes expressly state that Plaintiff’s medical history did not include asthma or COPD . . . and as of April 2016, encounter notes state that pulmonary function tests would be ordered because Plaintiff ‘may have COPD.’” (ECF No. 48 ...


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