Palma
v.
Berryhill

DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISIONJul 23, 2018
Civil Action No. 6:17-1723-JMC-KFM (D.S.C. Jul. 23, 2018)

Civil Action No. 6:17-1723-JMC-KFM

07-23-2018

Quirina Santiago Palma, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.


REPORT OF MAGISTRAT E 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).

A report and recommendation is being filed in this case in which one or both parties declined to consent to disposition by the magistrate judge. --------

The plaintiff brought this action pursuant to Section 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for supplemental security income benefits under Title XVI of the Social Security Act.

ADMINISTRATIVE PROCEEDINGS

The plaintiff filed an application for supplemental security income ("SSI") benefits on March 7, 2013, alleging disability since January 31, 2010. The application was denied initially and on reconsideration by the Social Security Administration. On April 11, 2014, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff and Tonetta Watson-Coleman, an impartial vocational expert, appeared on July 24, 2014, considered the case de novo, and on October 15, 2015, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended. Through her representative at the hearing, the plaintiff amended her alleged onset date to March 7, 2013. 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 April 28, 2017. The plaintiff then filed this action for judicial review.

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 has not engaged in substantial gainful activity since March 7, 2013, the amended alleged onset date (20 C.F.R. § 416.971 et. seq.).
(2) The claimant has the following severe impairments: spinal degenerative disease with radiculopathy (20 C.F.R. § 416.920(c)).
(3) 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. §§ 416.920(d), 416.925, 416.926).
(4) After careful consideration of the entire record, the undersigned finds that claimant has the residual functional capacity to perform medium work as defined in 20 C.F.R. § 416.967(c), except she can frequently push, pull, handle, finger, and feel with the upper extremities; can occasionally reach overhead; and can frequently climb ramps or stairs, stoop, kneel, and crouch. The claimant can never climb ladders, ropes, or scaffolds, crawl, or balance for safety on dangerous surfaces. The claimant needs to have a sit/stand option at her workstation every 60 minutes.
(5) The claimant is capable of performing past relevant work as a telemarketer. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 C.F.R. § 416.965).
(6) The claimant has not been under a disability, as defined in the Social Security Act, since March 7, 2013, the date the application was filed and the amended alleged onset date (20 C.F.R. § 416.920(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.

APPLICABLE LAW

Under 42 U.S.C. § 1382c(a)(3)(A), (H)(i), 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. § 416.905(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. § 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 416.920(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).

EVIDENCE PRESENTED

The plaintiff was 58 years old on her amended alleged disability onset date (March 7, 2013) and 61 years old at the time of the ALJ's decision (October 15, 2015) (Tr. 101). The plaintiff completed a year of college and earned a certificate in business administration (Tr. 49, 244).

On May 9, 2013, the plaintiff presented to Summerville Medical Center with complaints of neck and left upper extremity pain for the last six months. She described it as aching and throbbing made worse by movement. At times, a shooting pain would go down her left arm, which felt like pins and needles. The physical examination was normal. X-rays showed mild cervical spondylosis characterized by prominent anterior osteophytosis, mild loss of disc space at C6-C7, multilevel facet arthropathy, and straightening of normal lordotic curvature. She was diagnosed with cervical radiculopathy and prescribed Ultram and Valium (Tr. 351-56, 362-63).

On May 17, 2013, the plaintiff presented to Summerville Health Center for a follow up to her emergency room visit. She reported continued pain in her neck and left arm, and it was worse at night, interfering with her ability to sleep. Both her cervical spine and left shoulder were tender, and she exhibited moderate pain motion. She was diagnosed with radiculopathy, and an MRI was suggested. She was instructed to continue Tramadol and prescribed Elavil (Tr. 367-70).

On June 14, 2013, the plaintiff presented to Roper Hospital, complaining of severe shoulder pain radiating to her chest and left arm pain. She described her left arm as feeling like a numb glove. She reported moderate pain in her cervical spine. On examination, her cervical spine and left shoulder were tender with mildly reduced range of motion. Muscle strength in the left upper extremity was diminished at 4+. The plaintiff was diagnosed with cervical radiculopathy and instructed to abstain from heavy lifting. Elavil was discontinued, and she was prescribed Neurontin and a Prednisone taper. She was referred for an MRI (Tr. 371-73).

On November 5, 2013, the plaintiff presented to Trident Medical Center with complaints of pain in her shoulder. She reported sharp pains radiating into her left arm, leg, and the side of her back. She was tender to palpation in the left paraspinals and left shoulder. She had palpable spasms in the left trapezius muscle. Physical examination showed normal back with full and painless range of motion, no neurological deficits, full range of motion in the neck and all extremities, and no swelling in the extremities. She was diagnosed with neck and shoulder pain (Tr. 386-89). On November 21, 2013, the plaintiff returned to Summerville Health Center with continued complaints of neck pain radiating down her arm. She reported she needed a new order for an MRI. She also complained of lumbosacral pain. On examination, she exhibited point tenderness in the C4-C7 and L4-S1 spinous processes and bilateral sternocleidomastoid muscles. She had decreased range of motion in all planes of motion in the neck and back. She exhibited weakness in both the left upper and lower extremity. She was diagnosed with radiculopathy and lumbosacral spondyloarthritis (Tr. 408-10, 419).

An MRI dated December 12, 2013, showed mild multilevel cervical degenerative changes. At C4-C5, there was central endplate spurring and minor ventral indentation of the thecal sac. At C6-C7, there was minor uncinate hypertropthy and degenerative change on the right (Tr. 411).

On January 7, 2014, the plaintiff returned to Summerville Health Center with complaints of unresolving pain. She deferred an exam because there was no change. She had increased pain with limited range of motion and significant weakness in the left arm. She was referred to a neurosurgeon (Tr. 415-16).

Also on January 7, 2014, James Dove, P.A., completed a medical source statement. He reported diagnoses of cervicalgia and lumbosacral spondyloarthritis with a poor prognosis. He noted surgical intervention was necessary. Her symptoms were radiculopathy, upper extremity weakness, pain, and parasthesias, which were constantly severe enough to interfere with attention and concentration. She could sit, stand, and walk for five to ten minutes at a time, but not for a significant length of time. Mr. Dove noted that the plaintiff demonstrated nerve entrapment, which caused significant left sided weakness and paralysis. She could never lift less than ten pounds and could not use her hands or arms for any significant period of time. In his opinion, she would miss work more than four times per month (Tr. 428-29).

On February 20, 2014, the plaintiff attended a consultative examination with William F. Maquire, Jr., M.D. She reported she had rheumatoid arthritis in her neck, shoulder, back, and hand. She had been told that she needed surgery for a pinched nerve. She reported that, despite her pain, she was fairly active around the house, but chores took longer due to discomfort. On examination, the plaintiff was tender to palpation in the cervical spine and both trapezius muscles. She had slight tenderness throughout the middle and low back. Range of motion in the cervical spine was slightly diminished at 30 degrees extension, 45 degrees lateral flexion, and 60 degrees rotation. Range of motion in the lumbar spine was limited to 20 degrees extension and lateral flexion and 80 degrees flexion. The left shoulder was limited to 80 degrees abduction and forward elevation, 20 degrees adduction, and 40 degrees internal and external rotation. Left knee flexion was limited to 90 degrees flexion. The plaintiff exhibited slightly diminished fine motor manipulative ability, and she could not heel to toe walk or squat. The plaintiff had normal gait and full range of motion in all other joints. She had normal sensorimotor function and deep tendon reflexes in both arms and legs, negative straight leg raising test, no joint swelling, normal grip strength, normal gross manipulative ability, and no muscular atrophy. Dr. Maguire noted that he did not know how the plaintiff was diagnosed with rheumatoid arthritis as tests and imaging did not support the diagnosis. He opined she was somewhat limited in her ability to carry out prolonged physical activity that required a lot of physical heavy type work or repetitive use of the left arm. Prolonged standing and walking would cause her pain and limit her ability to carry out those types of occupations (Tr. 430-32).

On March 6, 2014, state agency medical consultant Mary Lang, M.D., reviewed the record through March 2014 and opined that the plaintiff could perform a modified range of medium exertion work (Tr. 129-32).

On May 24, 2014, during an emergency room visit, the plaintiff had a normal neurological examination with no motor or sensory deficits (Tr. 468).

On July 1, 2015, the plaintiff began mental health treatment. She reported that she was depressed with an irritable mood and was sometimes angry. She wanted to be by herself often. She reported poor sleep, little enjoyment of things around her, and guilt over her son's imprisonment and her parents' deaths. She had poor concentration and was easily distracted. At times, she would have poor energy, while at other times, she would be hyper and irritable. She was diagnosed with mood disorder, but it was noted that alcohol was likely worsening her condition. An accurate diagnosis could not be ascertained while she continued to drink. She was started on low dose Fluoxetine, which would be gradually titrated up (Tr. 475-76).

On July 14, 2015, Laura Lee Smith, M.D., completed a mental capacity assessment on the plaintiff's behalf. She opined that the plaintiff had marked limitations in the ability to remember work like procedures and moderate limitation in the ability to understand and remember simple instructions. She noted the plaintiff would forget the words for common objects, and she had a poor short term memory. She opined that the plaintiff had marked limitations in the ability to maintain attention and concentration, complete a normal workweek without interruption from psychologically based symptoms, and perform at a consistent pace. She had moderate limitations in the ability to perform activities within a schedule, maintain attendance, be punctual, work in coordination with others, and complete a normal workweek without interruption from psychologically based symptoms. In her opinion, the plaintiff would miss work more than four days per month. She noted that the plaintiff had significant agoraphobia, which would contribute to her absences. Poor concentration and easy distractibility would contribute to her diminished ability to work without interruptions and distractions. The plaintiff needed multiple series of instructions and review of instructions from her supervisor. She opined that the plaintiff had marked limitation in her ability to use public transportation and make goals due to agoraphobia. She noted that alcohol had a moderate impact on her condition, but the plaintiff had been decreasing her usage (Tr. 480-82).

At the administrative hearing, the plaintiff testified that she did not receive much treatment for her conditions because she had stopped going to her doctor due to lack of funds, and she used free clinics. Her medication for depression made her feel loopy. She performed household chores, but it took her longer, and afterward she had to sit down and rest. Her friend washed her laundry for her, and someone went with her grocery shopping to carry the groceries into her house (Tr. 51-56).

The vocational expert testified that a person of the plaintiff's age, education, and work experience, with the determined residual functional capacity ("RFC") could perform the plaintiff's past relevant work as a telemarketer. A limitation to simple, routine, repetitive work would eliminate past employment, but she could perform other work in the national economy. If she was unable to maintain persistence and pace for two hours due to pain, she would be unable to maintain employment (Tr. 74-77).

ANALYSIS

The plaintiff argues that (1) the ALJ erred by failing to adopt the findings of a previous decision in accordance with Acquiescence Ruling 00-1(4) and (2) the ALJ's steps four and five findings are not supported by substantial evidence (doc. 16 at 7-13).

Consideration of Previous ALJ Decision

The plaintiff first argues that the ALJ failed to properly explain the weight given to a previous ALJ decision on her prior disability claim in which the plaintiff alleged a disability onset date of October 19, 2009 (doc. 16 at 7-11). In the prior decision, issued on March 13, 2012, ALJ James Howard Scott determined that the plaintiff suffered from the severe impairment of degenerative disc disease and limited her to sedentary work (Tr. 82-90). ALJ Scott noted that the medical evidence showed normal gait, normal range of motion, no imaging, and lack of treatment (Tr. 87). While the plaintiff reported swelling and numbness, records documented no swelling or sensory deficits (Tr. 87). The ALJ relied upon an opinion provided by consultative examiner Dr. Robinson that the plaintiff was able to sit, stand, and walk without significant limitation, but he gave the plaintiff the benefit of the doubt and limited her to sedentary work (Tr. 88).

Acquiescence Ruling ("AR") 00-1(4) applies in cases, where as here, a claimant files a subsequent disability claim. AR 00-1(4), 2000 WL 43774. An ALJ considering whether a claimant is disabled during a previously un-adjudicated period must consider a prior finding as evidence and give that finding "appropriate" weight in light of the attendant facts and circumstances. Id. at *4. Furthermore, in determining the appropriate weight to assign such a finding, the following factors are to be considered: (1) whether the fact on which the prior finding was based is subject to change with the passage of time, such as a fact relating to the severity of a claimant's medical condition; (2) the likelihood of such a change, considering the length of time that has elapsed between the period previously adjudicated and the period being adjudicated in the subsequent claim; and (3) the extent that evidence not considered in the final decision on the prior claim provided a basis for making a different finding with respect to the period being adjudicated in the subsequent claim. Id. The Ruling advises an ALJ to consider all relevant facts and circumstances on a case-by-case basis. Id. The Ruling also provides that where the prior finding is more remote in time, for example as in Albright v. Comm'r of Soc. Sec. Admin., 174 F.3d 473 (4th Cir. 1999), where nearly three years had passed, the ALJ should give less weight to that finding than to a prior finding that is closer in time, as in Lively v. Sec'y of Health & Human Servs., 820 F.2d 1391 (4th Cir. 1987), such as a few weeks. 2000 WL 43774, at * 4.

The ALJ in the decision at issue here stated that she considered the findings of the ALJ in the previous decision under Albright, Lively, and AR 00-1(4), and she recited the factors set out above for consideration in determining the weight to give the findings of the prior decision (Tr. 24). The ALJ then found as follows:

The sedentary residual functional capacity from the prior decision has not been adopted as evidence received in conjunction with the claimant's current hearing supports a finding that the claimant is not as limited as the previous judge determined. Also, significant weight has been given to the current opinions of the state agency medical and psychological consultants for the reasons described above.

(Tr. 24).

The plaintiff argues that the evidence submitted to the ALJ in the decision at issue here supports a finding that the plaintiff's condition worsened since the previous ALJ's decision in March 2012. She argues that, unlike the record from the prior decision, the current record includes x-rays and an MRI from the relevant period confirming the plaintiff's degenerative disc disease in the cervical spine. Specifically, the x-ray in May 2013 showed prominent anterior osteophytosis at several levels, loss of disc space height at C6-C7, multilevel facet arthropathy, and straightening of normal lordotic curvature (Tr. 363). The MRI in December 2013 showed endplate spurring and indentation of the thecal sac at C4-C5 and uncinated hypertrophy and degenerative change at C6-C7 (Tr. 411). The plaintiff further argues that examination findings support a worsening of her condition. Specifically, the plaintiff's cervical spine and left shoulder were tender and caused moderate pain with range of motion (Tr. 369, 372); she had decreased position sense in the left extremity with muscle strength diminished at 4+ (Tr. 373); she had spasms in the left trapezius muscle and exhibited point tenderness in the C4-C7 and L4-S1 spinous processes and bilateral sternocleidomastoid muscles (Tr. 388, 419); and she had decreased range of motion in all planes of motion in the neck and back and exhibited weakness in both the left upper and lower extremities (Tr. 419). Further, during the consultative examination in February 2014, the plaintiff exhibited tenderness to palpation in the entire spine and bilateral trapezius muscles, range of motion was diminished in the left shoulder and cervical spine, she was unable to heel-to-toe walk or squat, and she exhibited diminished fine motor manipulative ability (Tr. 431-32). The plaintiff also points out that surgery was suggested to treat her condition, which was not mentioned in the prior decision (Tr. 416, 428).

The plaintiff further notes that the consultative examination with Dr. Robinson, which was discussed in the prior decision, lacked objective findings, which led Dr. Robinson to opine that the plaintiff was not limited in her ability to stand and walk (Tr. 88). However, in the current consultative examination, Dr. Maguire noted that the plaintiff appeared to have pain in her joints on the left side and an MRI scan of her neck showed arthritis, which he opined "would probably cause her a good deal of discomfort" with prolonged standing and walking and "heavy repetitive use of her left arm" (Tr. 432). Notably, the ALJ stated that she gave Dr. Maguire's opinion "weight as it is supported by the findings of Dr. Maguire's exam and the other medical evidence of record described above" (Tr. 23).

The plaintiff argues that the above-cited evidence supports a finding limiting her to sedentary work rather than an RFC of a reduced range of medium work as found by the ALJ. Thus, the plaintiff argues that the ALJ erred in failing to make any findings regarding whether her condition improved to support the less limiting RFC, and the ALJ's statement that the evidence supported a deviation from the prior RFC finding was insufficient under AR 00-1(4). The plaintiff further argues that, given her age now, had the ALJ agreed with the previous determination that she was limited to sedentary work, she would be found disabled. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.06.

In response, the Commissioner argues that the ALJ properly considered the prior decision and discussed the medical evidence demonstrating the plaintiff's improvement (doc. 17 at 5-8). However, the ALJ did not find that the plaintiff's condition had improved since the prior decision; rather, the ALJ found that the "current hearing supports a finding that the claimant is not as limited as the previous judge determined" (Tr. 24).

The ALJs in both decisions found that the plaintiff's spinal degenerative disease with radiculopathy (or degenerative disc disease) was severe (Tr. 15, 84). As noted by the Honorable R. Bryan Harwell, United States District Judge, in Tucker v. Colvin, "[A]ilments, such as degenerative disc disease are, by their nature, diseases that worsen with time. Thus, . . . the particular diseases in question are those that generally increase in severity over time, or at the very least, do not improve." C.A. No. 0:15-cv-03750-RBH, 2017 WL 382429, at *4 (D.S.C. Jan. 27, 2017). In that case, the court determined that the ALJ's RFC finding that the plaintiff could perform light work, when the prior decisions found the plaintiff capable of only sedentary work, was not supported by substantial evidence because the ALJ failed to adequately explain why no weight was given to the prior RFC findings, particularly when the plaintiff's "conditions would get worse, or at least stay the same, over time." Id. In this case, the ALJ found that the plaintiff could perform medium exertional work, whereas the prior decision found she was capable of only sedentary work, and the previous decision was issued less than a year prior to the filing of the claim at issue here (Tr. 13, 90). In considering the factors listed in AR 00-1(4), the undersigned cannot conclude that the ALJ adequately explained why she assigned no weight to the prior finding in this case, particularly in light of the fact that the plaintiff's condition is such that it "would get worse, or at least stay the same, over time. Accordingly, the court cannot find that based upon the information provided in the decision, substantial evidence exists in the record and the findings were reached through the application of the correct legal standard." Tucker, 2017 WL 382429, at *4.

Steps Four and Five

In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not address the plaintiff's remaining issues, as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir.2003) (remanding on other grounds and declining to address claimant's additional arguments); Hancock v. Barnhart, 206 F. Supp.2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo). However, if needed, the ALJ should also address the following additional allegations of error raised by the plaintiff: (1) the ALJ's step four finding that she could perform past relevant work as a telemarketer (Tr. 25) is not supported by substantial evidence because the evidence shows that her work as a telemarketer did not meet the earnings threshold for substantial gainful activity, see 20 C.F.R. §§ 416.960(b), 416.965(a), 416.974(a)(1); and (2) the ALJ's alternate step five finding that she could perform other work that exists in significant numbers in the national economy is based upon a faulty RFC assessment, and if the ALJ had appropriately determined that she was limited to sedentary work in accordance with the prior decision, she would have been found disabled under the Medical-Vocational Guidelines (doc. 16 at 11-13). See 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.06.

CONCLUSION AND RECOMMENDATION

Now, therefore, based on the foregoing, it is recommended that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above. Although the plaintiff requests that the court "rule as a matter of law that [she] is disabled" (doc. 16 at 13), the court finds that the plaintiff's entitlement to benefits is not wholly established and that this matter should be remanded for further consideration and assessment of the above-discussed evidence by the ALJ in the first instance. See Crider v. Harris, 624 F.2d 15, 17 (4th Cir. 1980) (finding remand for an award of benefits was warranted where the individual's entitlement to benefits was "wholly established" on the state of the record).

IT IS SO RECOMMENDED.

s/ Kevin F. McDonald


United States Magistrate Judge July 23, 2018
Greenville, South Carolina