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Spigner v. Colvin

United States District Court, D. South Carolina

July 5, 2016

RICKY VALENTEE SPIGNER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          Ricky 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.

         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 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).[1] 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).

         A 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).[2] 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).

         Plaintiff 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.

         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 "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).

         Plaintiff's Medical Records

         On 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).

         On May 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).

         In July 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).

         Dr. 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).

         On July 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).

         On July 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. 473-480).

         On 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. (R.pp. 482-491).

         Dr. 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 sysdemotic ...


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