United States District Court, D. South Carolina
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.
Plaintiff filed the complaint in this action pursuant to 42
U.S.C. Â§ 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
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.
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.
42 U.S.C. Â§ 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
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
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).
Medical History and Background Information
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.
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).
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 ...