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Vinson v. Commissioner of Social Security Administration

United States District Court, D. South Carolina

December 3, 2019

BAYLEY D. VINSON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT, UNITED STATES MAGISTRATE JUDGE

         Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C).

         Plaintiff applied for Disability Insurance Benefits (DIB) on May 14, 2014 (protective filing date), alleging disability beginning November 6, 2011, [1] due to broken CI and C2 vertebra in the spine, a broken left shoulder, a broken right shoulder, a broken left forearm, broken pelvic bone in two places, depression and anxiety (R.pp. 232-242). Plaintiffs claim was denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on August 1, 2017. (R.pp. 36-77).[2] The ALJ thereafter denied Plaintiff's claim in a decision issued September 20, 2017. (R.pp. 15-30). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-6).

         Plaintiff then filed this action in United States District Court. Plaintiff asserts that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed and remanded to the Commissioner for an award of benefits, or in the alternative for further consideration of her claim. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.

         Scope of review

         Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:

evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is “substantial evidence.” [emphasis added].

Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Nothing that the substantial evidence standard is even “less demanding than the preponderance of the evidence standard”].

         The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. “[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

         Discussion

         Plaintiff, who was only twenty-four years old on her original alleged disability onset date, [3] has a high school education and past relevant work experience as a Certified Nurse Assistant (CNA), a fast food worker, and a retail cashier. (R.pp. 28, 232, 237). In order to be considered “disabled” within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve (12) months. After a review of the evidence and testimony in the case the ALJ determined that, although Plaintiff does suffer from the “severe” impairments[4] of status- post motor vehicle accident with bilateral shoulder, pelvic, and C1-2 fractures; DeQuervain's tenosynovitis, [5] left greater than right; obesity; major depressive disorder; mild neurocognitive disorder due to traumatic brain injury; obsessive compulsive disorders; and personality changes, thereby rendering her unable to perform any of her past relevant work, she nevertheless retained the residual functional capacity (RFC) to perform a range of light work[6] with certain specified limitations, and was therefore not entitled to disability benefits. (R.pp. 18, 20, 28-29).

         Plaintiff asserts that in reaching this decision the ALJ erred by improperly weighing the medical opinion evidence of Dr. Randolph Waid (an examining psychologist), by improperly relying on the opinions of the state agency medical consultants with respect to Plaintiffs physical limitations, by failing to properly consider and assess Plaintiffs subjective complaints as to the extent of her pain and limitations, and by failing to sustain his burden of establishing that there is other work in the national economy that Plaintiff can perform with her limitations. After careful review and consideration of the record and arguments presented, the undersigned is constrained to agree with the Plaintiff that the ALJ failed to properly evaluate Dr. Waid's opinion in conjunction with the other medical evidence relating to Plaintiffs mental impairments in fashioning Plaintiffs RFC, thereby requiring a remand of Plaintiff s claim for further consideration.

         RFC is defined as “the most [a claimant] can still do despite [the claimant's] limitations.” 20 C.F.R. § 404.1545(a)(1). In SSR 96-8p, RFC is defined as a function-by-function assessment of an individual's physical and mental capacities to do sustained, work-related physical and mental activities in a work setting on a regular and continuing basis of eight hours per day, five days per week, or the equivalent. SSR 96-8p, 1996 WL 374184. During his examination of the Plaintiff in August 2012, Dr. Waid noted that Plaintiff reported experiencing a decreased capacity for attention/concentration and memory, and that Plaintiff had stated that she “cannot do anything very long”. On objective testing, Dr. Waid found that Plaintiff demonstrated a good ability to sustain her vigilance to “the demands of the task”, although “[n]europsychological evaluation revealed variability in [Plaintiff's] capacity to sustain attention/concentration with slow mental processing speed”. (R.pp. 748, 751, 753). When Dr. Waid saw Plaintiff again in July 2017, his clinical presentation notes indicate that Plaintiff continued to experience cognitive impairments involving attention/concentration difficulties and memory problems including an easy distractability, while on testing her results were classified as poor and consistent with attention problems. Dr. Waid concluded that Plaintiff's mental and functional difficulties compromised her capacities to sustain attention/concentration and process information in her day to day pursuits. (R.pp. 786-787, 789, 794). Dr. Waid also completed a Mental Impairments check sheet provided by Plaintiff's attorney in which he found, inter alia, that Plaintiff had a marked limitation in her ability to concentrate, persist, or maintain pace. (R.p. 799).

         In fashioning Plaintiff's RFC, the ALJ gave little weight to Dr. Waid's opinion, finding that his conclusions were heavily based on Plaintiff's subjective reports, and tended to ignore Plaintiff's almost across the board test scoring in the average to low average range. (R.p. 28). The undersigned agrees that many of Dr. Waid's own test results reflect test scores in only the average to low average range, calling into question Dr. Waid's finding of “marked” limitations. (R.pp. 788-791). Even so, substantial evidence in the case record does not support the ALJ's finding that the Plaintiff would not have difficulty with stamina and persistence in the work place due to her complaints of low energy and attention and concentration problems. (R.p. 28). In reaching that conclusion, the ALJ specifically found that the “ record does not demonstrate that [Plaintiff] has complained of low energy levels or problems with attention and concentration to her primary care providers”. Id. However, the ALJ himself (in his decision) cites to Plaintiff's medical records wherein Plaintiff complained of attention and concentration problems. Plaintiff discussed her attention problems with P. A. Josephine Redman (at Palmetto Primary Care Physicians) on May 29, 2013, she discussed her attention and concentration problems with Dr. Cashton Spivey on July 25, 2014, and complained to Dr. Waid of difficulties sustaining attention and concentration in July 2017, all as noted by the ALJ himself in his decision. See (R.pp. 24-26, 514-515, 609-611, 784-794). The ALJ also noted that Plaintiff testified at the hearing that she has limitations in concentrating and completing tasks. (R.pp. 20, 22). As such, that finding was clear error. Similarly, the ALJ states that “the record fails to show any mention of distractability”. (R.p. 20). However, in addition to Plaintiff's own testimony on this ...


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