Smart v. Colvin

• Decision Date: 27 January 2016
• Docket Number: Case No. 8:14-cv-04633-BHH-JDA
• Court: U.S. District Court — District of South Carolina
• Parties: Lena Robin Smart, Plaintiffs, v. Carolyn W. Colvin, Commissioner of Social Security, Defendant.

Lena Robin Smart, Plaintiffs, v. Carolyn W. Colvin, Commissioner of Social Security, Defendant.

Case No. 8:14-cv-04633-BHH-JDA

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

January 27, 2016

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 October 27, 2011, Plaintiff filed applications for DIB and SSI alleging disability beginning July 31, 2011. [R. 136-137, 138-147.] The claims were denied initially and upon reconsideration by the Social Security Administration ("the Administration"). [R. z64-89, 91-114.] Plaintiff requested a hearing before an administrative law judge ("ALJ") and on March 28, 2013, ALJ Ann G. Paschall conducted a hearing on Plaintiff's claim. [R. 44-61.]

The ALJ issued a decision on August 8, 2013, finding Plaintiff not disabled. [R. 21-37.] At Step 1,³ the ALJ found Plaintiff met the insured status requirements of the Social Security Act through September 30, 2015, and had not engaged in substantial gainful activity since July 31, 2011, the alleged onset date. [R. 23, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: degenerative disc and degenerative joint disease of the cervical and lumbar spine, bilateral hearing loss status post cochlear implant surgery, bilateral carpal tunnel syndrome status post release surgeries, and migraine headaches. [R. 23-24, Finding 3.] The ALJ also noted that Plaintiff had the following non-severe impairments: a history of slight degenerative change in the distal interphalangeal joint of the right great toe, diverticula, irritable bowel syndrome, menorrhagia, granulomatous disease with calcified nodules in the left lung and calcified hilar lymph nodes, remote injuries resulting from motor vehicle accidents, cerebral contusion, hypertension, osteoarthritis, pneumonia, bronchitis, benign nevus, urinary tractinfection, and tonsillectomy. [R. 25.] The ALJ found that these impairments have been controlled with medication and/or other conservative measures and have not resulted in any lasting limitation of her ability for basic work-related activities. [Id.] The ALJ also found that while Plaintiff claimed to have a seizure disorder, there was not medical evidence establishing seizure activity or significant treatment during th time period in question. [R. 26.] The ALJ, however, accounted for this issue in evaluating Plaintiff's environmental and other work restrictions. [Id.] And while Plaintiff testified that she had a past closed head injury that interfered with her memory, the ALJ determined there was no evidence that Plaintiff has been treated for any residual problems related to that injury and there was no evidence of intracranial trauma; thus, the ALJ found Plaintiff did not have a severe impairment related to her remote cerebral contusion. [Id.] Further, while Plaintiff alleges an impairment of fibromyalgia, the ALJ found that, applying the criteria of SSR 12.2, Plaintiff does not have medically determinable fibromyalgia. [R. 27.] Lastly, the ALJ notes that Plaintiff has a very remote history of adolescent adjustment reaction/depression and personality disorder, but that there is no evidence indicating that she received treatment for or has been diagnosed with any mental impairment since becoming an adult; accordingly, Plaintiff was not found to have a medically determinable mental impairment. [Id.]

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 listed impairments. [R. 27, Finding 4.] The ALJ expressly considered Listing 1.04 with respect to Plaintiff's spinal impairments,Listing 2.11 with respect to Plaintiff's hearing loss, and Listing 11.14 with respect to Plaintiff's carpal tunnel issues. [R. 27-28.]

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, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with certain additional limitations. Specifically, the claimant can lift and/or carry 10 pounds occasionally and less than 10 pounds frequently. The claimant can sit, stand, and walk for up to 6 hours each out of an 8-hour workday. The claimant can occasionally use hand controls with the right dominant hand. The claimant can never use ladders. The claimant can occasionally use stairs, crouch, crawl, and stoop. The claimant can frequently kneel. The claimant can reach overhead occasionally with the bilateral upper extremities. The claimant can frequently handle and feel with the right upper extremity. The claimant must avoid concentrated exposure to extreme heat and extreme cold, loud noises, dangerous machinery, and unprotected heights. The claimant will need to supplement hearing with lip reading, which requires that she be able to see the person to whom she is talking whenever communicating verbally.

[R. 28.]

At Step 4, the ALJ noted Plaintiff was unable to perform any of her past relevant work as a nursing assistant. [R. 36, Finding 6.] Considering Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. [R. 36, Finding 10.] On this basis, the ALJ found Plaintiff had not been under a disability as defined by the Act from July 31, 2011, through the date of the decision. [R. 37, Finding 11.]

Plaintiff requested Appeals Council review of the ALJ's decision and the Council declined review. [R. 1-7. ] Plaintiff filed this action for judicial review on December 7, 2014. [Doc. 1.]

THE PARTIES' POSITIONS

Plaintiff contends the ALJ's decision is not supported by substantial evidence and that remand is necessary because the ALJ improperly rejected the opinions of Plaintiff's treating physicians, the ALJ failed to perform a function-by-function assessment in analyzing Plaintiff's RFC, and the Appeals Council failed to consider and weigh new and material evidence. [Doc. 11.]

The Commissioner, on the other hand, contends the ALJ's decision is supported by substantial evidence and that the ALJ properly considered and weighed the opinion evidence of record, the ALJ properly determined Plaintiff's RFC, and the Appeals Council properly concluded that there was no reasonable possibility that the evidence presented would affect the ALJ's decision. [Doc. 12.]

STANDARD OF REVIEW

The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687(S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is 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 a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").

Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).

The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in cleardisregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42...