Beeks v. Berryhill, Civil Action No 8:16-cv-02565-BHH-JDA

• Decision Date: 01 September 2017
• Docket Number: Civil Action No 8:16-cv-02565-BHH-JDA
• Parties: Zola Mae Beeks, Plaintiff, v. Nancy A. Berryhill, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of South Carolina

Zola Mae Beeks, Plaintiff, v. Nancy A. Berryhill, Commissioner of Social Security, Defendant.

Civil Action No 8:16-cv-02565-BHH-JDA

DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION

September 1, 2017

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B).¹ Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claims for disability insurance benefits ("DIB") and supplemental security income ("SSI").² For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).

PROCEDURAL HISTORY

On September 1, 2011, Plaintiff filed applications for DIB and SSI, alleging an onset of disability date of January 1, 2011. [R. 309-15, 316-24.] The claims were denied initially on December 29, 2011 [R. 135-46, 147-57] and on reconsideration on March 1, 2012 [R. 162-75, 176-89] by the Social Security Administration ("the Administration"). Plaintiff requested a hearing before an administrative law judge ("ALJ") and on February 6, 2013, ALJ Alice Jordon conducted a de novo hearing on Plaintiff's claim. [R. 34-82.]

The ALJ issued a decision on March 15, 2013, finding Plaintiff not disabled. [R. 192-210.] At Step 1,³ the ALJ found Plaintiff met the insured status requirements of the Social Security Act ("the Act") through December 31, 2016, and had not engaged in substantial gainful activity since January 1, 2011, the alleged onset date. [R. 197, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: disc bulges at the C4-5 and C5-6 levels with some spondylosis, headaches, high blood pressure, degenerative disc disease, left knee pain, and obesity. [R. 197, Finding 3.] The ALJ also found Plaintiff had non-severe impairments of anxiety, depression, and post-traumatic stress disorder. [R. 198.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 198, Finding 4.]

Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ found Plaintiff retained the following residual functional capacity ("RFC"):

After careful consideration of the entire record, the undersigned finds claimant has the residual functional capacity to perform less than the full range of light, but more than sedentary workas defined in 20 CFR 404.1567(b) and 416.967(b). She could lift or carry up to 20 pounds occasionally and 10 pounds frequently. In an 8-hour workday, claimant could stand, walk, or sit up to 6 hours each with the ability to change positions. Claimant could climb step and ramps occasionally, but never ladders. She could crouch or kneel occasionally and balance, stoop or crawl frequently. Claimant could have frequent contact with the public; however, she is limited to performing unskilled tasks due to her headaches.

[R. 199, Finding 5.] Based on this RFC finding, the ALJ determined at Step 4 that Plaintiff was unable to perform any of her past relevant work as a hairstylist, personal care aid, packer, and order picker/packer. [R. 202, Finding 6]. However, upon considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert ("VE"), the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed. [R. 202, Finding 10.]

Plaintiff requested Appeals Council review of the ALJ's decision, and the Appeals Council granted review under the substantial evidence provision of the Social Security Administration regulations, vacated the prior decision, and remanded the matter to the ALJ for resolution of the following issues:

• The Administrative Law Judge notes that Dr. Amir Agha completed a fibromyalgia medical questionnaire in August of 2012. Dr. Agha indicated claimant has at least 11 positive tender points bilaterally on the left and right side of her body (Exhibit 25F). He also completed a fibromyalgia residual functional capacity questionnaire (Exhibit 27F). Dr. Agha noted claimant experiences chest pain, fatigue, headaches, and insomnia. She also experiences multiple tender points, non-restorative sleep, morning stiffness with numbness and tingling, anxiety, and symptoms of depression. He opined claimant could lift or carry less than 10 pounds frequently, but never 10 pounds or more. In an 8-hour workday, claimant could sit, stand, or walk for less than 2 hours. Dr. Agha indicated claimant would experience pain frequently and she would need a job that permits her to shift positions at-will from sitting, standing, or walking. Claimant would be absent from work more than 4 times a month (Exhibit 27F). While the decision addresses Dr.Agha's opinion, it does not explain the weight given to such opinion evidence. Additionally, the Administrative Law Judge does not address whether the claimant's alleged fibromyalgia is a severe impairment. Therefore, further consideration is necessary.

• The Administrative Law Judge states the claimant uses a cane to assist with ambulation (Decision, Page 3). Further, in connection with the request for Appeals Council review, the claimant's treating physician Dr. Thaer A. Joudeh noted the claimant ambulates in his office with the assistance of a cane. The requirement to use a hand-held assistive device may impact on the individual's functional capacity by virtue of the fact that one or both upper extremities are not available for such activities as lifting, carrying, pushing, and pulling (See Appendix 1 to Subpart P of Part 404-Listing of Impairments, 1.00J).

[R. 212-13.] Upon remand, the ALJ was directed by the Appeals Council to:

• At step two, determine whether claimant's alleged fibromyalgia is a medically determinable impairment that is "severe" or a combination of impairments that is"severe" (20 CFR 404.1520(c) and 416.920(c)). An impairment or combination of impairments is "severe" within the meaning of the regulations if it significantly limits an individual's ability to perform basic work activities. An impairment or combination of impairments is "not severe" when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual's ability to work (20 CFR 404.1521and416.921; Social Security Rulings (SSRs) 85-28, 96-3p, and 96-4p).

• Obtain additional evidence concerning whether the claimant's cane is medically necessary in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence (20 CFR 404.1512-1513 and 416.912-913). The additional evidence may include, if warranted and available, a consultative Orthopaedic examination and medical source statements about what the claimant can still do despite the impairment.

• Give further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations (Social Security Ruling 96-8p ). In so doing, evaluate the treating source opinions pursuant to the provisions of 20 CFR 404.1527 and 416.927 and Social Security Rulings 96-2p and 96-5p, and explain the weight given to such opinion evidence. As appropriate, the Administrative Law Judge may requestthe treating source to provide additional evidence and/or further clarification of the opinion (20 CFR 404.1512 and 416.912).

• If warranted by the expanded record, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Ruling 83-14). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566 and 416.966). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).

[R. 213-14.]

In accordance with the remand order from the Appeals Council, Plaintiff appeared and testified before the ALJ at a subsequent hearing on October 1, 2014. [R. 83-132.] The ALJ issued a subsequent decision on November 25, 2014, finding Plaintiff not disabled. [R. 7-33.] At Step 1, the ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2016, and had not engaged in substantial gainful activity since January 1, 2011, the alleged onset date. [R. 13, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: degenerative joint disease in the left knee, degenerative disc disease of the cervical spine, lumbago, fibromyalgia, myalgia, depression and anxiety. [R. 14, Finding 3.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 17, Finding 4.] The ALJ specifically referenced consideration of Listings 1.04, 1.02, and 12.04/12.06/12.08. [R. 17-19.]

Before addressing Step 4, Plaintiff's ability to perform her...