United States District Court, D. South Carolina
V Spigner, Plaintiff, represented by Paul Townsend McChesney,
McChesney and McChesney.
Commissioner of Social Security Administration, Defendant,
represented by Marshall Prince, 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 March 23,
2010, alleging disability beginning May 26, 2006, due to
problems with his left shoulder, right wrist, and left
ankle/foot; hypertension; and high cholesterol. (R.pp. 286,
310). Plaintiff later amended his onset date to February 19,
2010. (R.pp. 13, 88). 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 19, 2012. (R.pp. 83-116). The ALJ thereafter
denied Plaintiff's claim in a decision issued May 24,
2012. (R.pp. 173-182). However, the Appeals Council granted
Plaintiff's request for review, and remanded the case for
a new decision. (R.pp. 187-190).
second hearing was then held before a different ALJ on
December 10, 2013. (R.pp. 117-143). That ALJ thereafter
denied Plaintiff's claim in a decision issued January 23,
2014. (R.pp. 13-24). This time 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. 1-4).
then filed this action in United States District Court.
Plaintiff asserts that the ALJ's decision is not
supported by substantial evidence, and that this case should
be remanded to the Commissioner for further proceedings. 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
"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).
March 23, 2010 (the month following Plaintiff's amended
disability onset date), Dr. Michael E. Tollison evaluated
Plaintiff's complaints of pain in his right foot and
ankle stemming from a May 2006 accident in which he (while on
the job as a sanitation worker) was hit by a car. It was
noted that Plaintiff had also undergone surgery on his left
ankle in 2007. Plaintiff reported pain at rest which worsened
after a lot of activity, which was in turn alleviated with
rest and elevation. On examination Plaintiff had no
significant clonus in his lower extremities; intact
sensation; negative straight leg raise testing; plantigrade
feet with some valgus, but no clawtoes; protected gait on the
left; global pain in his left ankle with stress testing, but
with no gross instability; and neuralgic pain in his anterior
ankle and thickening in his ankle and foot, but with no
evidence of portal area nerve entrapment. Plaintiff's
left ankle and hindfoot motion was somewhat decreased
compared to the right, his left ankle did not dorsiflex to
neutral with his knee straight, and his hindfoot was limited
with some limitation in the transverse tarsal joint. There
was no motor loss, gross instability, or crepitance. Dr.
Tollison diagnosed Plaintiff with chronic left ankle and
hindfoot from his 2006 injury, limited left ankle and
hindfoot motion, Achilles tightness, and anterior ankle
neuralgia. He suggested a custom brace, suspected surgery
would not help, and found that Plaintiff was limited in
standing and walking. (R.pp. 386-387, see R.pp. 123-124).
12, 2010, Dr. Woodrow Bell at Richland Community Healthcare
noted that Plaintiff's hypertension was controlled and
ordered diagnostic tests for Plaintiff's complaints of
rightsided abdominal pain. (R.pp. 390-391). On May 26, 2010,
Plaintiff reported that his right-side pain worsened with
prolonged standing or walking and was relieved with sitting.
Dr. Bell adjusted Plaintiff's medications and referred
Plaintiff to an ENT for a jaw mass. (R.pp. 392-393). On June
23, 2010, Dr. Bell noted that Plaintiff had right lower
quadrant tenderness and referred Plaintiff for a general
surgery consultation. (R.pp. 394-395).
2010, a left shoulder x-ray showed sclerosis suggesting
impingement. Left ankle x-ray showed some degenerative
changes, but no acute fracture. An x-ray of Plaintiff's
left foot indicated mild osteoarthritic changes involving the
first metatarsal phalangeal joint and a prominent calcaneal
spur at the plantar fascia insertion, but no acute fracture.
(R.pp. 396, 430-431).
Vasant L. Garde performed an orthopedic consultative
examination on July 20, 2010, which revealed that Plaintiff
walked with a normal gait and satisfactory pace from the
waiting room to the examination room with no assistive
device; could heel-toe walk; could squat; had minimal
weakness in his left leg, with strength 4; and had
essentially normal range of motion, except for five degrees
of limitation in dorsiflexion at Plaintiff's left ankle.
Plaintiff also had full grip strength in both hands with no
difficulties with fine or gross manipulation, normal
reflexes, no joint abnormality, and (despite Plaintiff's
complaints of numbness) no sensory loss. (R.pp. 398-403).
26, 2010, state agency psychologist Edward Waller opined that
Plaintiff had a learning disability that resulted in a mild
restriction in his activities of daily living; no
difficulties in maintaining social functioning; mild
difficulties in maintaining concentration, persistence, or
pace; and no episodes of decompensation of extended duration.
Dr. Waller noted that Plaintiff's school records at age
sixteen revealed IQ scores of Verbal 83, Performance 94, and
Full Scale 87, although Plaintiff's reading and spelling
were at a second grade level and Plaintiff attended resource
classes for reading. (R.pp. 404-417). Separately, state
agency physician Lindsey Crumlin opined in July 2010 that
Plaintiff could perform a range of light work with lifting
and/or carrying twenty pounds occasionally and ten pounds
frequently; standing and/or walking about six hours in an
eight-hour workday; sitting about six hours in an eight-hour
workday; occasional use of left foot pedals; occasional
climbing of ramps, stairs, ladders, ropes, and scaffolds; and
occasional balancing, stooping, kneeling, crouching, and
crawling. (R.pp. 418-430).
30, 2010, Plaintiff was evaluated by physical therapist Tracy
Hill of Columbia Rehabilitation Clinic, Inc., who noted that
Plaintiff's left ankle range of motion was limited. Ms.
Hill thought that Plaintiff's lifting abilities limited
him to a range of light to medium work, with occasional
walking, stair climbing, kneeling, bending, and twisting and
reaching. She noted that Plaintiff was not able to tolerate
occasional squatting. Plaintiff's self-reported
tolerances were 120 minutes for sitting, fifteen minutes for
standing, and twenty minutes for standing/walking. Observed
maximal times were twenty minutes for sitting, twelve minutes
for standing, and twenty-two minutes for standing/walking.
Ms. Hill opined that although Plaintiff's lifting ability
restricted him to a range of light to medium work, he was
better qualified for a range of sedentary to light work
secondary to his limited standing/walking abilities. (R.pp.
August 23, 2010, Ms. Cynthia P. Grimley, M.S., conducted a
vocational and earning capacity evaluation. Plaintiff
reported he graduated from high school, but attended special
education classes in a contained classroom because of his
reading disability. He had a driver's license, and his
activities included watching television and occasionally
going fishing. Wide Range Achievement Test results indicated
a 1.1 grade equivalent in word reading, K.6 in sentence
comprehension, 1.4 in spelling, and 12.9 in math computation.
Ms. Grimley found that Plaintiff had a learning deficit in
reading, spelling, and sentence comprehension, but had
average intelligence and math skills. She opined that
Plaintiff's employability was diminished due to
significantly restricted labor market access, he had academic
barriers, and he was not considered competitively employable.
Tollison examined Plaintiff again on October 29, 2010 for
complaints of pain. Examination revealed plantigrade feet
with some valgus, but no clawtoes; protected gait on the
left; global left ankle pain with stress testing, but no
instability; less neuralgic pain than before; and no evidence
of portal area nerve entrapment, but thickening at the ankle
and foot. Left ankle and hindfoot motion was limited, there
was mild equinus, and there was some limitation in the
transverse tarsal joint. Plaintiff had no motor loss, gross
instability, or crepitance. X-rays revealed heterotopic