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Thomas v. Colvin

United States District Court, D. South Carolina, Aiken Division

May 29, 2014

Daryl M. Thomas, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.

REPORT AND RECOMMENDATION

SHIVA V. HODGES, Magistrate Judge.

This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed.

I. Relevant Background

A. Procedural History

On October 29, 2010, Plaintiff filed an application for DIB in which he alleged his disability began on December 31, 2008. Tr. at 141-44. His application was denied initially and upon reconsideration. Tr. at 81-82. On February 15, 2012, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Augustus C. Martin. Tr. at 36-79 (Hr'g Tr.). The ALJ issued an unfavorable decision on February 28, 2012, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 20-31. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-3. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on May 13, 2013. [Entry #1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 40 years old at the time of the hearing. Tr. at 36, 41. He completed high school and two years of college. Tr. at 43. His past relevant work ("PRW") was as a computer repairer, electronics repairer, and scales repairer. Tr. at 70-71. He alleges he has been unable to work since December 31, 2008. Tr. at 141.

2. Medical History

a. Treatment Records

In February 2009, an MRI revealed that Plaintiff had a left-sided disc bulge at L4-L5 of his lumbar spine as well as some facet hypertrophy at L4-L5 bilaterally. Tr. at 319, 382. He complained of lower back pain that radiated into his legs and numbness in his hands and feet. Tr. at 319. Jonathan Gardner, M.D., opined that Plaintiff's weight was the primary factor in his chronic low back pain. Id.

On March 18, 2009, Plaintiff underwent lumbar disk compression with nucleoplasty. Tr. at 260. His records indicate he had a history of drug-seeking behavior and was discharged previously for breaking his pain medication contract. Tr. at 261. Two days after his surgery, Plaintiff was hospitalized overnight after dramatic crying and screaming and essentially refusing to leave the hospital. Tr. at 311. Plaintiff asked to be "knocked out for a few days" and was disappointed he had been discharged from the hospital so quickly. Id. Plaintiff's mother informed his primary care physician, Fred Michael, M.D., that most physicians think that her son is a drug addict. Id. Dr. Michael noted that there was clearly a complex dynamic between mother and son that was not likely to be conducive to improvement of Plaintiff's condition. Id.

Plaintiff returned to Dr. Michael on June 16, 2009, complaining of chronic low back pain. Tr. at 310. The doctor noted that Plaintiff had morbid obesity and severe depression. Id. Plaintiff was referred to an orthopedist for complaints regarding ingrown toenails. Id.

On October 12, 2009, Tyler Wind, M.D., opined that Plaintiff might have cubital tunnel syndrome in his left arm and mild carpal tunnel syndrome bilaterally, but that he demonstrated good strength in his left hand. Tr. at 301. That same day, electrodiagnostic testing indicated that Plaintiff had neuropathy in his left elbow, and possibly had mild carpal tunnel syndrome bilaterally. Tr. at 258.

On December 9, 2009, Plaintiff presented to Dr. Michael for anxiety related to undergoing orthopedic surgery. Tr. at 296. Plaintiff stated that he believed he had immunity to most medications, but Dr. Michael indicated that he thought a combination of anxiety, morbid obesity, and chronic opiate use explained why Plaintiff needed larger doses of medication. Tr. at 296.

On June 2, 2010, Dr. Michael saw Plaintiff for follow up of his major depressive disorder and chronic low back pain. Tr. at 287. The doctor noted that Plaintiff's depression rendered him essentially catatonic at times and that his lack of insurance had kept him from seeing a psychiatrist. Id. Plaintiff reported that Morphine did not help his back pain and requested a different medication. Id. Dr. Michael noted that interventions to date had not significantly improved Plaintiff's back pain and that he was morbidly obese. Id.

On September 15, 2010, Dr. Michael noted that Plaintiff was morbidly obese and had chronic low back pain, anxiety, diabetes, hypertension, obstructive sleep apnea, and depression that made him essentially catatonic at times. Tr. at 282. Dr. Michael further noted that Plaintiff had some work at home as a computer technician. Id. Dr. Michael indicated that Plaintiff refused to accept that his size and his chronic use of pain medication were the reasons why he was resistant to pain medication. Id.

On March 23, 2011, Dr. Michael noted that he was unable to offer Plaintiff any help with his quest for disability because Dr. Michael believed that Plaintiff would likely be capable of work if he had adequate improvement in his psychiatric issues. Tr. at 458. Dr. Michael stated, however, that Plaintiff had no funding and had been unable to see a psychiatrist. Id.

Plaintiff returned to Dr. Michael on June 15, 2011, with concerns regarding his pain medication. Tr. at 455. He stated that Methadone only worked for four days. Id. Plaintiff reported using a CPAP machine at night. Id. Plaintiff's diagnoses included chronic back pain, morbid obesity, depression with vegetative features, and a likely personality disorder. Id. Dr. Michael noted that Plaintiff was selectively noncompliant with therapies and that Plaintiff both told him that he needed disability because he could not work, but also that he had numerous and important computer clients. Id. Dr. Michael stated that Plaintiff's psychiatric issues impeded any progress in his medical issues. Id.

b. Consultative Examinations

On January 19, 2011, E.G. Schleimer, Ph.D., conducted a consultative psychological examination of Plaintiff. Tr. at 422-23. Plaintiff demonstrated good memory, attention, and concentration, but his degree of depression was difficult to assess and his social judgment seemed problematic. Id. Dr. Schleimer diagnosed Plaintiff with personality disorder and dysthymic disorder and noted that Plaintiff should have medical care for weight loss. Tr. at 423. The doctor opined that Plaintiff had the ability and judgment to handle funds on his own behalf, may be unemployable due to physical problems, and might benefit from group therapy. Id.

c. State Agency Assessments

On March 1, 2011, state-agency consultant Judith Vogelsang, D.O., opined that Plaintiff could lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk two to four hours in an eight-hour workday; and sit about six hours in an eight-hour workday. Tr. at 436-44. Dr. Vogelsang further opined that Plaintiff could do no direct overhead work bilaterally and no constant handling or fingering with his left hand, but had no right hand restrictions. Tr. at 440. Finally, the doctor stated that Plaintiff should avoid even moderate exposure to hazards. Tr. at 441. On August 10, 2011, a second medical consultant issued a similar opinion. Tr. at 466-73.

On February 17, 2011, Leif Leaf, Ph.D., a non-examining psychological consultant, opined that Plaintiff had dysthymic disorder; mild restriction of activities of daily living ("ADLs"); mild difficulty maintaining social functioning; mild difficulty maintaining concentration, persistence, and pace; and no episodes of decompensation. Tr. at 424-35.

On August 13, 2011, a second psychological consultant, Lisa Varner Ph.D., found that Plaintiff had attention deficit disorder, depressive disorder, dysthymic disorder, anxiety disorder, and personality disorder. Tr. at 474-81. Dr. Varner further opined that Plaintiff had mild restriction of ADLs; moderate difficulty in maintaining social functioning; moderate difficulty in maintaining concentration, persistence, and pace; and no episodes of decompensation. Tr. at 484. Dr. Varner further opined that Plaintiff was able to understand, remember, and carry out simple and detailed instructions; would perform best in situations that do not require ongoing interaction with the public; was aware of normal hazards and could take appropriate precautions. Tr. at 490.

C. The Administrative Proceedings

1. The Administrative Hearing

a. Plaintiff's Testimony

At the hearing on February 28, 2012, Plaintiff testified that he lived with his mother, who did his laundry and drove him to the hearing. Tr. at 42. He stated that he drove occasionally and completed about two years of college. Tr. at 42-43. He said that his physical impairments included two bulging discs, loss of joints on his left hand, ulnar neuropathy, and carpal tunnel syndrome. Tr. at 51. He testified that he experienced back pain and that his physical problems caused him to be unable to crawl, bend, or lift more than five or 10 pounds. Tr. at 46, 52-53. Plaintiff testified that he also suffered from depression. Tr. at 57. He stated that his medications caused him to have an upset stomach, diarrhea, dry mouth, and severe fatigue. Tr. at 56. He said that his medication did not work very well to relieve his symptoms and that lying down was the only thing that provided relief. Tr. at 57. He said he had trouble using a keyboard because of his carpal tunnel syndrome. Tr. at 63-64. He stated that he had problems with his attention and was told that he had attention deficit disorder. Tr. at 64. He said that approximately once a week, his depression caused him to be in a catatonic state. Id.

Plaintiff stated that on a regular day, he got up at noon. Tr. at 58. He said he then watched television or read and that he liked reading "Scientific America" and physics books. Tr. at 58. He testified that he went shopping every two weeks, had friends visit on a weekly basis, and attended church twice a month. Tr. at 61-62. He said that about eight times per month, he went to his church's family history center where his mother worked. Tr. at 62-63.

Plaintiff asserted that pain medications did not help him because he was missing a gene marker that would allow his body to break down the medication. Tr. at 66. As a result, he said that he received all of the adverse ...


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