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Tesolowski v. Colvin

United States District Court, D. South Carolina

June 22, 2016

ANTHONY DENNIS TESOLOWSKI, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          Anthony D Tesolowski, Plaintiff, represented by Carole M. Dennison, Dennison Law Firm, Timothy Allen Clardy, Dennison Law Firm & Hannah Rogers Metcalfe, Metcalfe and Atkinson LLC.

          Commissioner of Social Security Administration, Defendant, represented by Barbara Murcier Bowens, U.S. Attorneys Office.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT, Magistrate Judge.

         The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein he was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.).

         Plaintiff applied for Disability Insurance Benefits ("DIB") on May 27, 2014 (protective filing date), alleging disability beginning August 7, 2013, due to traumatic brain injury (TBI), post-traumatic headaches and post-concussive syndrome, bursitis of his right knee, right foot degenerative arthritis with hammer toe, left (dominant) shoulder rotator cuff tendonitis, lumbar degenerative disc disease and joint disease, right ankle degenerative arthritis, left ankle degenerative arthritis, left foot degenerative arthritis with hammer toe, bilateral pes planus, post-traumatic stress disorder (PTSD), and a cognitive disorder. (R.pp. 18, 207, 225). Plaintiff's claim was denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"), which was held on April 16, 2015. (R.pp. 35-69). At the hearing, Plaintiff amended his alleged onset of disability date to June 25, 2014. (R.p. 43). The ALJ thereafter denied Plaintiff's claim in a decision issued May 7, 2015. (R.pp. 18-29). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-5). Plaintiff then filed this action in United States District Court.

         Plaintiff asserts that there is not substantial evidence to support the ALJ's decision such that this Court should reverse the decision of the ALJ and Appeals Council and order the Commissioner to award benefits, or alternatively that the decision should be remanded to the Commissioner for further consideration. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.

         Scope of review

         Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:

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 refusal to direct a verdict were the case before a jury, then there is "substantial evidence." [emphasis added].

Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Noting that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].

         The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

         Brief Medical History and Background Information

         Plaintiff served in the Army from 2001 until he was honorably discharged on medical retirement in June 2014. In 2004, Plaintiff's Bradley (Humvee-type) vehicle suffered an enemy rocket blast in Iraq that caused him to be thrown backwards and upside down and to lose consciousness. In 2007 he was hit by a mortar while in combat in Iraq, and he again lost consciousness. Six months later in Iraq, Plaintiff suffered a third blow to his head when he was slammed against the chain inside his Bradley vehicle. Then, while working on his car in 2014, Plaintiff tried to stand up quickly, at which time he hit his head and lost consciousness. (R.p. 1019).

         Plaintiff appears to primarily have received medical care through Department of Defense healthcare providers until the time of his discharge. The record contains medical notes from May 2013 to May 2014 showing treatment primarily at Fort Benning, Georgia. (R.pp. 342-1017). Thereafter, Plaintiff primarily sought treatment at Veterans Administration medical centers. (R.pp. 1034-1140, 1147-1164).

         In July 2014, Dr. Robin Moody, a psychologist, conducted IQ and other testing on the Plaintiff and concluded that he had PTSD, a mild learning disability related to reading and writing expression, and a mild neurocognitive disorder. Based on Plaintiff's deficient working memory and the results of processing speed testing, Dr. Moody opined that Plaintiff had poor concentration, persistence, and pace. Dr. Moody opined that Plaintiff could carry out simple one-step instructions but would have difficulty with more complex or multi-step instructions. Dr. Moody also noted that Plaintiff could complete light chores and prepare his own meals, but ...


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