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McCray v. Colvin

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

July 31, 2014

Eboni Charreen McCray, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.

ORDER

SHIVA V. HODGES, Magistrate Judge.

This appeal from a denial of social security benefits is before the court for a final order pursuant to 28 U.S.C. § 636(c), Local Civil Rule 73.01(B) (D.S.C.), and the Honorable Mary G. Lewis's February 26, 2013, order referring this matter for disposition. [Entry #19]. The parties consented to the undersigned United States Magistrate Judge's disposition of this case, with any appeal directly to the Fourth Circuit Court of Appeals.

Plaintiff files this appeal pursuant to 42 U.S.C. § 405(g) of the Social Security Act ("the Act") to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying the claim for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"). 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 court affirms the Commissioner's decision.

I. Relevant Background

A. Procedural History

On July 27, 2006, Plaintiff filed applications for DIB and SSI in which she alleged her disability began on August 15, 2005. Tr. at 353-55, 358-64. Her applications were denied initially and upon reconsideration. Tr. at 184-88, 192-95. On October 15, 2008, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Francis F. Talbot. Tr. at 47-62. (Hr'g Tr.). During that hearing, Plaintiff's attorney made a motion on the record to amend Plaintiff's alleged onset date of disability to March 2008. Tr. at 51. The ALJ issued an unfavorable decision on November 18, 2008, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 150-161. On June 29, 2010, the Appeals Council remanded the case to the ALJ under the substantial evidence, error of law, and new and material evidence provisions of 20 C.F.R. §§ 404.970 and 416.1470. Tr. at 162-65. On April 19, 2011, Plaintiff had a hearing before ALJ Roseanne P. Gudzan. Tr. at 63-93. (Hr'g Tr.). Plaintiff's attorney moved to amend Plaintiff's alleged onset date of disability to June 30, 2010. Tr. at 170. The ALJ issued a fully favorable decision on June 9, 2011, finding that Plaintiff had been under a disability since June 30, 2010, and that her substance use disorder was not a contributing factor material to the determination of disability. Tr. at 166-76. Under the authority of 20 C.F.R. §§ 404.977 and 416.1474, the Appeals Council vacated the hearing decision and remanded the case for further proceedings. Tr. at 177-82. On May 15, 2012, Plaintiff had a second hearing before ALJ Gudzan. Tr. at 94-145. (Hr'g Tr.). The ALJ issued an unfavorable decision on July 12, 2012, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 16-37. 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 January 17, 2013. [Entry #1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 33 years old at the time of the most recent hearing. Tr. at 99. She completed high school, but was enrolled in resource classes and received a certificate of completion instead of a diploma. Id. Her past relevant work ("PRW") was as a nurse assistant. Tr. at 141. She alleges she has been unable to work since June 30, 2010. Tr. at 19.

2. Medical History

Plaintiff presented to Bon Secours St. Francis on August 20, 2010, and complained that her lips were swelling and that she was short of breath. Tr. at 912. Phillip Warr, M.D., concluded that Plaintiff was having an acute allergic reaction to Bactrim. Id. Plaintiff informed Dr. Warr that she had been diagnosed with bipolar disorder, but that she was not taking medication. Tr. at 913. Dr. Warr advised Plaintiff that the Prednisone that he prescribed for treatment of the allergic reaction could induce a manic episode. Id.

On August 25, 2010, Plaintiff presented for urine drug screen, which was negative for all substances. Tr. at 1017.

On October 4, 2010, Plaintiff presented to Ryan Byrne, M.D., for treatment of depression and anxiety. Tr. at 941. Plaintiff reported poor sleep, variable appetite, periods of tearfulness, and low energy. Id. She reported a history of alcohol and cocaine abuse, but indicated that she had not abused substances since June. Id. Dr. Byrne assessed depression and alcohol abuse and cocaine dependence in early full remission. Id. Plaintiff's affect was restricted and her mood was sad. Id. Her thought process was linear and organized, without indication of psychosis. Id. She reported no suicidal or homicidal ideations or hallucinations. Id. Her insight and judgment were fair. Id.

On October 12, 2010, Plaintiff tested negative for all substances. Tr. at 1018.

On November 14, 2010, Plaintiff was admitted to Medical University of South Carolina ("MUSC") following a sexual assault. Tr. at 921. Plaintiff sustained physical injuries and was diagnosed with left ulnar fracture. Tr. at 923.

Plaintiff followed up with Dr. Byrne on January 10, 2011. Tr. at 942. Plaintiff reported that her mood was up and down and that she was experiencing some hopelessness. Id. She reported that she had completed a substance abuse class and that she remained sober from alcohol and drugs. Id. She indicated that she was experiencing intrusive thoughts, nightmares, hypervigilance, fear of leaving the house, and poor sleep. Id. Dr. Byrne noted that Plaintiff's affect was tearful at times, but that her thought process was linear and organized, without evidence of psychosis. Id. He indicated that Plaintiff endorsed no suicidal or homicidal thoughts, but that her insight and judgment were impaired. Id. Dr. Byrne added a diagnosis of PTSD. Id.

On March 21, 2011, Plaintiff presented to Dr. Byrne for follow up. Tr. at 943. Plaintiff reported that her mood had worsened because she ran out of Remeron. Id. She also indicated that she had recently binged on alcohol. Id. She reported significant PTSD symptoms, including nightmares, hypervigilance, being easily startled, avoiding discussion of her assault, and avoiding being alone in public. Id. Plaintiff's affect was somewhat anxious. Id. Her thought process was linear and organized, without evidence of psychosis. Id. Her insight and judgment were fair, and she denied suicidal or homicidal ideations and hallucinations. Id.

On April 3, 2011, Alicia R. Murphy, a clinical counselor, wrote a letter indicating that Plaintiff had completed services and had been discharged from the substance abuse treatment program. Tr. at 1019. Ms. Murphy further indicated in her letter that all urine drug screens and breathalyzer results were negative. Id. Ms. Murphy indicated that Plaintiff reported to her that she drank alcohol on two occasions, both prior to November 2010. Id.

Plaintiff followed up with Dr. Byrne on April 25, 2011. Tr. at 944. Plaintiff reported improved mood, but some difficulty controlling her anger. Id. She also endorsed low energy, poor concentration, increased appetite, and avoidance of large groups. Id. Dr. Byrne observed Plaintiff to have sad affect; linear and organized thought process; no suicidal or homicidal ideations; no hallucinations; and fair insight and judgment. Id.

On May 16, 2011, Plaintiff presented to Harry P. Rudolph, IV, M.D., complaining of left forearm pain. Tr. at 960. X-rays indicated a significant hypertrophic non-union of the ulna. Id. Dr. Rudolph discussed treatment options with Plaintiff and indicated that Plaintiff had chosen to proceed with open reduction internal fixation with small fragment fixation. Id.

On May 23, 2011, Plaintiff followed up with Dr. Byrne. Tr. at 956. Plaintiff reported increased frustration and hopelessness. Id. She reported decreased nightmares, but indicated that she was experiencing hypervigilance and that she had visual hallucinations of shadows. Id. Dr. Byrne indicated that Plaintiff's mood was more depressed and that her affect was anxious. Id. He indicated that her thought process was overall linear without evidence of psychosis. Id. Plaintiff reported no suicidal or homicidal thoughts, but Dr. Byrne indicated that her insight and judgment were impaired.

Id.

On May 28, 2011, Plaintiff presented to MUSC, complaining of arm pain. Tr. at 949. No specific source for the pain was identified. Id.

On June 27, 2011, Plaintiff reported to Dr. Byrne that her mood was "alright." Tr. at 957. She denied suicidal and homicidal thoughts, but reported persistent nightmares. Id. Dr. Byrne reported that her affect was bright; that her thought process was linear and organized; and that her insight and judgment were fair. Id.

Plaintiff followed up with Dr. Byrne on July 25, 2011. Tr. at 958. Plaintiff reported minimal nightmares, good sleep, and improved mood. Id. She indicated that she was still afraid to leave her house at night. Id. She reported that she was going to the employment office daily to look for jobs. Id. Dr. Byrne noted that Plaintiff's affect was bright; that her mood was less depressed; that her thought process was clear and organized; that she denied suicidal and homicidal thoughts; that her insight was fair; and that her judgment was good. Id.

On August 22, 2011, Plaintiff reported increased depression and anxiety to Dr. Byrne. Tr. at 959. Plaintiff reported increased stressors, including the need to testify against her attacker, a recent threat from her attacker, and a new man courting her. Id. She reported sleep disturbance, increased nightmares, and decreased motivation. Id. Dr. Byrne described Plaintiff's affect as sad and anxious. Id. Dr. Byrne noted that Plaintiff's insight and judgment were impaired, but that her thought process was linear and organized and that she reported no suicidal or homicidal ideations. Id.

On September 26, 2011, Plaintiff reported to Dr. Byrne that she was experiencing increased depression and passive suicidal thoughts after beginning therapy. Tr. at 976. Plaintiff's affect was constricted and her mood was depressed. Id. Her thought process was linear and organized. Id. Plaintiff demonstrated no evidence of psychosis and denied hallucinations. Id. Plaintiff's insight and judgment were fair. Id.

On October 8, 2011, Plaintiff presented to Roper Hospital with a panic attack. Tr. at 961.

Plaintiff followed up with Dr. Byrne on October 24, 2011. Tr. at 977. Plaintiff reported a history of sexual abuse perpetrated by two uncles. Id. She complained of severe anxiety and poor sleep. Id. Plaintiff denied suicidal ideations, homicidal ideations, and hallucinations. Id. Dr. Byrne indicated that Plaintiff's thought process was linear and organized and that her insight and judgment were fair. Id.

Plaintiff presented to MUSC on November 14, 2011, complaining of pain and suicidal ideation. Tr. at 979-84. She reported symptoms including poor appetite; loss of interest in pleasurable activities; sleep disturbance; decreased attention span; episodes of tearfulness or crying; and pessimistic attitude to the future. Tr. at 979. Plaintiff denied recent suicide attempt and active alcohol or drug abuse. Id. Alcohol and drug screens were negative. Tr. at 983. Plaintiff was hospitalized at MUSC's Institute of Psychiatry from November 14-18, 2011. Tr. at 985.

Plaintiff presented to MUSC's Institute of Psychiatry for psychological evaluation on November 22, 2011. Tr. at 1092-93. Plaintiff reported symptoms of PTSD including re-experiencing, avoidance, and hyperarousal. Tr.at 1093. Plaintiff also reported symptoms of depression including depressed mood, anhedonia, appetite disturbance, fatigue/loss of energy, sleep disturbance, isolative behaviors, psychomotor agitation, psychomotor retardation, worthlessness/guilt, difficulty concentrating, and indecisiveness. Id. Plaintiff reported having panic attacks at least three times per week and being afraid to leave her home without having someone accompany her. Id.

On November 28, 2011, Plaintiff presented to MUSC's Institute of Psychiatry for outpatient initial evaluation. Tr. at 996-97. Plaintiff indicated that her depression and mood had improved, but that she continued to experience anxiety. Tr. at 996.

Plaintiff followed up with Dr. Rudolph on December 1, 2011, and complained of continued pain in her left ulna. Tr. at 978. Dr. Rudolph indicated that Plaintiff likely had reflex sympathetic dystrophy. Id. Dr. Rudolph noted that Plaintiff had full range of motion to her elbow. Id. However, he also indicated that Plaintiff lacked about ten degrees of supination to her forearm. Dr. Rudolph assessed a five percent impairment rating to Plaintiff's left arm. Id.

Plaintiff followed up with Lauren Yarrow, M.D., at MUSC's Institute of Psychiatry on December 12, 2011. Tr. at 998-99. Dr. Yarrow indicated that Plaintiff's energy was fair; that her thought process was linear; that her thought content was appropriate; that her interactions were isolated; that she was experiencing anhedonia; that she had some insight; that her judgment was fair; that her mood was depressed; and that her affect was anxious. Tr. at 998. Dr. Yarrow assessed a Global Assessment of Functioning ("GAF")[1] score of 55. Tr. at 999.

Plaintiff presented to Melissa Milanak for counseling on December 19, 2011. Tr. at 1000-02. Plaintiff endorsed symptoms of depression including low mood, low energy, frequent crying spells, and increased appetite. Tr. at 1001. Ms. Milanak described Plaintiff's energy as fair; her concentration as poor; her thought process as logical and linear; and her thought content as appropriate. Id. Plaintiff indicated to Ms. Milanak that she had difficulty completing tasks at work because of intrusive thoughts about her children and about abuse that she experienced in the past. Id. Plaintiff was tearful throughout the session. Tr. at 1002.

On January 25, 2012, Plaintiff presented to Cashton Spivey, Ph.D., for a psychological consultative evaluation. Tr. at 968-71. Plaintiff scored 23 out of a possible 30 points on the Mini-Mental State Examination ("MMSE"), which suggested cognitive difficulties. Tr. at 970. Plaintiff's test performance also suggested impairment to short-term auditory memory functioning and poor abstract reasoning abilities. Id. Dr. Spivey indicated that Plaintiff had intact language skills and was capable of following a three-step command and accurately reproducing a drawing. Id. Dr. Spivey indicated that Plaintiff's general fund of information; insight; judgment; and attention/concentration were fair. Id. He indicated that Plaintiff's mood was mildly sad and that her affect was blunted. Id. Dr. Spivey indicated that Plaintiff may have difficulty managing her funds because of inability to perform serial 7s and may have difficulty understanding complex instructions and performing complex tasks because of borderline intelligence. Tr. at 971. Dr. Spivey completed a medical source statement. Tr. at 965-67. He indicated that Plaintiff had mild impairment with respect to the following: understand and remember simple instructions; carry out simple instructions; the ability to make judgments on simple work-related decisions; interact appropriately with the public; interact appropriately with supervisors; and interact appropriately with co-workers. Tr. at 965-66. Dr. Spivey indicated that Plaintiff had moderate limitations with respect to the following: understand and remember complex instructions; carry out complex instructions; make judgments on complex work-related decisions; and respond appropriately to usual work situations and to changes in a routine work setting. Id. Dr. Spivey indicated that Plaintiff's general intelligence likely fell in the borderline range. Id. Dr. Spivey indicated that Plaintiff had PTSD and mood swings secondary to bipolar disorder. Tr. at 966. He wrote that "[i]ssues of ETOH/cocaine dependence do not appear to contribute to claimant's current limitations." Id.

On March 5, 2012, Plaintiff presented to MUSC's Pain Management Clinic for initial visit. Tr. at 1023-24. Plaintiff complained of chronic pain in her neck, shoulder, upper back, lower back, and leg. Tr. at 1023. She also complained of swelling, chest pain, shortness of breath, and sleep disturbance. Id. Steven Gibert, M.D., indicated that he suspected fibromyalgia and sleep apnea. Tr. at 1024.

On March 13, 2012, Plaintiff presented to Dr. Yarrow for follow up. Tr. at 1061. Dr. Yarrow noted that Plaintiff was sitting in the waiting room crying and indicating that she could not go on. Id. Dr. Yarrow recommended hospitalization, but Plaintiff refused. Id. When Dr. Yarrow insisted on hospitalization, Plaintiff threatened to become violent and left the building. Id. Plaintiff was apprehended by security and taken to the hospital, where she was involuntarily committed. Id.

Plaintiff was hospitalized at MUSC's Institute of Psychiatry from March 13-19, 2012, for suicidal thoughts. Tr. at 1036-85. Plaintiff reported decreased appetite, low energy, little concentration, and poor sleep. Tr. at 1036. Plaintiff's medication was adjusted, and Plaintiff was discharged with a GAF score of 55. Tr. at 1037.

On March 25, 2012, Plaintiff followed up with Dr. Yarrow. Tr. at 1086-88. Plaintiff was calm, alert, and fully oriented. Tr. at 1087. Id. She apologized for her behavior at the earlier visit and indicated that she had been upset because she discovered that her five-year-old was being physically abused ...


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