Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Malone v. Colvin

United States District Court, D. South Carolina

October 4, 2016

Michael Lee Malone, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.


          Shiva V. Hodges, United States Magistrate Judge

         This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his claim for Disability Insurance Benefits (“DIB”). 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 undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein.

         I. Relevant Background

         A. Procedural History

         On August 28, 2009, Plaintiff filed an application for DIB in which he alleged his disability began on February 16, 2009. Tr. at 59 and 106-12.[1] His application was denied initially and upon reconsideration. Tr. at 63-66 and 71-72. On June 16, 2011, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Frederick W. Christian. Tr. at 31-58. The ALJ issued an unfavorable decision on November 10, 2011, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 14-30 and 654-70. The Appeals Council subsequently denied Plaintiff's request for review. Tr. at 1-3, 371-73. Plaintiff filed an action in this court on May 1, 2012, seeking judicial review of the ALJ's decision. Malone v. Commissioner Social Security Administration, No. 3:12-1153-GRA, ECF No. 1. On June 14, 2013, the court issued an order reversing the ALJ's decision and remanding the case to the Social Security Administration (“SSA”) for further administrative action. Tr. at 680-82. The Appeals Council consequently issued an order remanding the case to an ALJ on August 30, 2013. Tr. at 674-78.

         Plaintiff filed a second application for benefits. Tr. at 797-98. On September 23, 2013, the SSA issued a decision finding that Plaintiff became disabled under its rules on February 1, 2013. Tr. at 700-05.

         Plaintiff had hearings before ALJ Harold Chambers on May 15, 2014, and September 9, 2014.[2] Tr. at 444-592 and 593-653 (Hr'g Tr.). The ALJ issued an unfavorable decision on February 13, 2015, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 382-443. 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 346-48. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on December 9, 2015. [ECF No. 1].

         B. Plaintiff's Background and Medical History

         1. Background

          Plaintiff was 42 years old on his alleged onset date and 46 years old on January 31, 2013. Tr. at 635. He completed the eleventh grade. Tr. at 454. His past relevant work (“PRW”) was as a construction worker and a machine operator. Tr. at 570. He alleges he has been unable to work since February 16, 2009. Tr. at 106.

         2. Medical History

         On February 16, 2009, Plaintiff injured his back while lifting a fire-rated door at a job site. Tr. at 211. Magnetic resonance imaging (“MRI”) on March 17, 2009, showed lumbar degenerative disc disease with a diffuse disc bulge and a supraimposed left paracentral disc protrusion that contacted and posteriorly displaced the descending left S1 nerve root. Tr. at 207-208. On March 23, 2009, John M. Hibbitts, M.D. (“Dr. Hibbitts”), observed Plaintiff to have a positive straight-leg raising (“SLR”) test on the left, but to ambulate with a normal gait and to have symmetric deep tendon reflexes (“DTRs”) and normal range of motion (“ROM”) in his hips, knees, and ankles. Tr. at 211. He diagnosed a symptomatic herniated disc and recommended epidural steroid injections (“ESIs”) and a rehabilitation program. Id. During a follow up visit on April 20, 2009, Plaintiff indicated rehabilitative therapy had provided some relief, but stated he was reluctant to undergo ESIs because a family member had suffered adverse effects from the procedure. Id. T. S. Whitehead, PA-C (“Mr. Whitehead”), assured Plaintiff that ESIs were safer than they had been ten years earlier, but agreed to proceed with increased therapy instead. Id. On May 4, 2009, Mr. Whitehead indicated the increased physical therapy had aggravated Plaintiff's pain and that he had agreed to receive an ESI. Tr. at 210. Plaintiff reported no symptoms after receiving the ESI. Id. Mr. Whitehead released Plaintiff to return to work and specified that Plaintiff could receive ESIs every six weeks as needed. Id.

         Plaintiff returned to Mr. Whitehead on June 8, 2009, and reported that his left leg discomfort was increasing. Id. Mr. Whitehead discussed treatment options, and Plaintiff requested a referral to a surgeon. Id.

         On July 9, 2009, neurosurgeon Michael N. Bucci, M.D. (“Dr. Bucci”), reviewed Plaintiff's MRI, and noted two small bulging discs at ¶ 5-S1 and on the left at ¶ 4-5. Tr. at 228. His examination revealed Plaintiff had negative bilateral SLR tests, no sensory loss, normal reflexes, and full muscle strength throughout his body. Tr. at 229. He concluded that surgery was not necessary and referred Plaintiff to Eric P. Loudermilk, M.D. (“Dr. Loudermilk”), a pain specialist. Tr. at 229 and 231.

         On August 7, 2009, Plaintiff complained of an intermittent burning pain in his left lower back that radiated to his left foot. Tr. at 233. Dr. Loudermilk's examination showed no significant tenderness, normal SLR test, intact nerves, normal sensation, normal motor strength, normal reflexes, and normal gait. Tr. at 234. Dr. Loudermilk administered a lumbar ESI. Tr. at 232. When Plaintiff returned for a second lumbar ESI on August 20, 2009, he reported little relief from the prior ESI. Tr. at 246. Plaintiff again reported no significant relief on September 1, 2009. Tr. 235. Dr. Loudermilk stated he was skeptical about Plaintiff's radiculopathy because he had not responded well to the ESIs. Id. He referred Plaintiff for nerve conduction studies (“NCS”) of his left leg. Id. On September 28, 2009, Dr. Loudermilk indicated the NCS showed an L5 and an S1 radiculopathy. Tr. at 236. Plaintiff reported a lot of anxiety and trouble sleeping, and Dr. Loudermilk prescribed Klonopin in addition to Lyrica and Lortab. Id. He referred Plaintiff for a computed tomography (“CT”) myelogram that showed no evidence of nerve root impingement. Tr. at 236, 240, and 252. On October 13, 2009, Dr. Loudermilk performed a lumbar epidural blood patch procedure to treat Plaintiff's post-myelogram spinal headaches. Tr. at 239. He recommended Plaintiff continue to use Lortab and Lyrica for pain, but stated he was not a surgical candidate. Tr. at 240.

         On October 27, 2009, state agency medical consultant Hugh Wilson, M.D. (“Dr. Wilson”), reviewed Plaintiff's medical records and completed a physical residual functional capacity (“RFC”) assessment. Tr. at 258-65. Dr. Wilson opined that Plaintiff retained the capacity to occasionally lift twenty pounds, frequently lift ten pounds, stand and/or walk about six hours in a workday, and sit about six hours in a workday. Tr. at 259. He indicated Plaintiff's condition limited him to frequent climbing of ramps or stairs; frequent balancing; occasional stooping, kneeling, crouching, and crawling; and precluded him from climbing ladders, ropes, or scaffolds. Tr. at 260.

         On November 25, 2009, Dr. Loudermilk prescribed Paxil for depression. Tr. at 278. He indicated Plaintiff was suffering from chronic mechanical low back pain of unclear etiology with mild lumbar disc bulging and disc protrusions and without evidence of nerve root compression. Id. He stated Plaintiff needed to complete a work hardening program and return to some type of gainful employment. Id. On January 19, 2010, Dr. Loudermilk opined that Plaintiff was at maximum medical improvement and should be able to return to gainful employment. Tr. at 276. He noted Plaintiff was having some problems with depression and increased his dosage of Paxil. Id.

         In approximately February 2010, Plaintiff underwent a functional capacity evaluation (“FCE”).[3] Plaintiff's physicians noted that the FCE report indicated Plaintiff did not give his full effort. See Tr. at 270 and 275. Dr. Loudermilk wrote there were multiple inconsistencies that would suggest Plaintiff may have been able to perform at a greater physical capacity than he was exhibiting. Tr. at 275.

         On March 16, 2010, Plaintiff indicated to Dr. Loudermilk that he had recently sustained a fall after his “back went out.” Tr. at 274. Plaintiff stated he felt like something was “slipping” in his lumbar spine. Id. Dr. Loudermilk indicated he would refer Plaintiff for flexion and extension x-rays to determine if there was something “slipping.” Id. He stated Plaintiff needed to work toward closing his Workers' Compensation case and returning to a status of gainful employment. Id. Flexion and extension view x-rays showed no abnormal motion segment. Tr. at 282. Lumbar spine imaging indicated degenerative disc space narrowing posteriorly at ¶ 4-L5 and L5-S1. Tr. 282.

         On March 29, 2010, Plaintiff presented to Carol W. Burnette, M.D. (“Dr. Burnette”), for an evaluation of his impairment rating. Tr. at 270-73. Dr. Burnette indicated Plaintiff walked with a slightly antalgic gait and had some increased muscle tension and a restricted ROM in his lumbar spine. Tr. at 272. A neurological examination revealed an altered sensation in Plaintiff's left posterolateral leg and foot, but Plaintiff had normal tone and motor strength. Id. Dr. Burnette assessed impairment ratings of 16 percent to Plaintiff's lumbar spine and 12 percent to his whole person. Tr. at 273. She recommended permanent work restrictions that included no lifting greater than 30 pounds occasionally, no repetitive bending or twisting, and no prolonged sitting or standing without the ability to change positions at will. Id.

         On April 13, 2010, Dr. Loudermilk noted that Plaintiff tolerated Xolox, Klonopin, Lyrica, and Paxil without side effects. Tr. at 269. He assessed mild lumbar disc bulging without obvious nerve root compression. Id.

         On May 17, 2010, Dr. Loudermilk indicated in a mental status form that Plaintiff was oriented to time, person, place, and situation; had an intact thought process; had obsessive thought content; had a worried/anxious mood/affect; had adequate attention and concentration; had adequate memory; and exhibited slight work-related limitation in function due to a mental condition. Tr. at 284.

         On May 28, 2010, state agency consultant Craig Horn, Ph. D. (“Dr. Horn”), opined that depression and anxiety caused only mild difficulties in Plaintiff's abilities to maintain social functioning and concentration, persistence, or pace. Tr. at 287-300. On June 10, 2010, state agency medical consultant Dale Van Slooten, M.D. (“Dr. Van Slooten”), assessed the same limitations as Dr. Wilson. Tr. at 301-08. Dr. Van Slooten specifically noted that Plaintiff's alleged limitations in standing, sitting, and walking were not supported by the evidence and that his allegations of severe pain were not supported by MRI results or physical examinations. Tr. at 306.

         Plaintiff reported symptoms of depression and crying spells to Dr. Loudermilk in September 2010. Tr. at 319.

         On October 1, 2010, chiropractor Donald Worley, D.C., stated he had treated Plaintiff since August 16, 2010, and noted he walked with an antalgic gait, demonstrated decreased ROM, and had severe muscle spasms to palpation. Tr. at 313.

         Plaintiff presented to psychiatrist Geera Desai, M.D. (“Dr. Desai”), in October and November 2010. See Tr. at 309-312. On October 28, 2010, Plaintiff stated he was unable to lift his infant son and did not want to be around anyone. Tr. at 312. He reported that his mind wandered and that he suffered from crying spells and had difficulty sleeping. Tr. at 310. Dr. Desai prescribed Xolox and Pristiq. Id. On November 29, 2010, Plaintiff indicated he felt tired and aggravated and did not want to be around people. Id.

         Plaintiff reported increased neck pain and bilateral upper extremity numbness to Sherri Cheek, APRN (“Ms. Cheek”), on October 8, 2010. Tr. at 318.

         On October 28, 2010, Plaintiff reported depression, poor sleep, crying spells, stomach upset, poor memory, and poor concentration. Tr. at 924. He stated he could not sit for more than 30 minutes; lift more than 30 pounds; engage in prolonged walking; bend over; or take a bath. Tr. at 925. Dr. Desai observed Plaintiff to be alert and oriented, but to constantly pace the floor and to have poor eye contact. Id. She noted he made facial grimaces that suggested he was in pain and appeared to be depressed and somaticizing. Id. She increased Pristiq to 100 milligrams and prescribed 100 milligrams of Desyrel. Id.

         On November 5, 2010, Ms. Cheek indicated an MRI of Plaintiff's cervical spine revealed some arthritis with an annular bulge from C3-4 through C5-6, with straightening of the cervical curve. Tr. at 317. She stated she felt like “a lot of” Plaintiff's “pain was coming from depression.” Id.

         On November 29, 2010, Plaintiff indicated Desyrel was helping him to sleep, but stated his pain was sometimes strong enough to wake him. Tr. at 923. He indicated Trazodone caused him to feel dizzy and sleepy the next day. Id. He complained of feeling worn out, tired, aggravated, and depressed. Id. He indicated he was avoiding others. Id.

         Plaintiff reported some improvement with the addition of Skelaxin on December 3, 2010, but indicated the medication made him drowsy. Tr. at 316. Ms. Cheek stated Plaintiff's medications were effectively treating his pain. Id.

         On December 22, 2010, Plaintiff reported he was on edge and mad at the world. Tr. at 922. He complained of depression and agitation. Id. Dr. Desai recommended Plaintiff speak to Dr. Loudermilk about increasing his dosage of Klonopin. Id.

         On January 4, 2011, Dr. Loudermilk stated Plaintiff continued to suffer from chronic mechanical low back pain and left leg pain, as well as anger and mood lability. Tr. at 315. He arranged for Plaintiff to be fitted with a muscle stimulator unit. Id.

         On January 19, 2011, Plaintiff reported improvement with the increased dose of Klonopin. Tr. at 921. He endorsed difficulty sleeping at night, but stated he only took half of a Trazodone because it made him extremely sleepy, irritable, tired, and angry. Id. Dr. Desai observed Plaintiff to be frustrated, depressed, and somaticizing. Id.

         On February 1, 2011, Dr. Loudermilk indicated Plaintiff had fallen and injured his right calf and foot. Tr. at 314.

         On March 17, 2011, Plaintiff complained that he was experiencing significant pain, feeling stressed, and having difficulty sleeping. Tr. at 920. Dr. Desai completed a mental RFC form and specified multiple limitations and restrictions. Tr. at 324-26.

         Plaintiff reported increased pain on April 29, 2011. Tr. at 955. He stated Xolox was only controlling his pain for four to five hours instead of six hours at a time. Id. Ms. Cheek prescribed Ultram for Plaintiff to take in between his doses of Xolox. Id.

         On May 3, 2011, Plaintiff reported he was in pain and had difficulty ambulating. Tr. at 920. Dr. Desai indicated Plaintiff was depressed and could not concentrate or enjoy day-to-day life. Id.

         On May 27, 2011, Plaintiff indicated his medications were working well and he was tolerating them without side effects. Tr. at 954. He complained of left-sided headaches, but Dr. Loudermilk indicated he did not feel the headaches were related to the back pain. Id.

         On June 14, 2011, Plaintiff complained to Dr. Desai of excessive daily low back pain and an inability to sleep. Tr. at 919.

         Plaintiff presented to Ron O. Thompson, Ph. D. (“Dr. Thompson”), for a consultative examination on July 11, 2011. Tr. at 339-41. Dr. Thompson performed several tests of mental and psychological functioning. Id. He noted that Plaintiff's speech was normal and coherent, but that Plaintiff appeared to have poor stress-coping skills, was easily distracted, and had delayed cognitive processing. Tr. at 339. Dr. Thompson estimated Plaintiff had low borderline intellectual functioning. Id. However, his intelligence quotient (“IQ”) testing fell in the mild range of mental deficiency. Tr. at 340. Dr. Thompson noted Plaintiff appeared to score far below what would be expected of one who had performed his past work for a number of years. Id. He attributed the inconsistency to Plaintiff's poor psychological adjustment to his physical allegations. Tr. at 341. Dr. Thompson noted that Plaintiff's complaints of pain were extraordinary and histrionic and that his psychiatric symptoms appeared to be quite pronounced and related to anxiety and preoccupation with pain. Id. Dr. Thompson opined that Plaintiff could not possibly concentrate on simple, repetitive types of tasks without being involved in a dangerous situation. Id. He indicated Plaintiff would have extreme restrictions responding to work pressures and marked restrictions in his ability to interact appropriately with the public, supervisors, and coworkers in a usual work setting. Tr. at 342-44.

         On July 12, 2011, Plaintiff presented to neurologist Russell Rowland, M.D. (“Dr. Rowland”), for a consultative examination. Tr. at 327-31. He reported low back pain, daily headaches, and depression. Tr. at 328. Plaintiff had no muscle atrophy and full strength in all of his extremities. Tr. at 329-30. Plaintiff demonstrated limited ROM of his hips and knees, but Dr. Rowland did not believe he was putting forth full effort. Tr. at 330. SLR tests were negative. Id. Dr. Rowland concluded that Plaintiff's symptoms far outweighed the physical findings and the results of the MRI of his lumbar spine. Tr. at 331. He stated there appeared to be “a lot of emotional overlay with his pain.” Id. He opined that Plaintiff could continuously lift 21 to 50 pounds; sit for an hour at a time; stand for 30 minutes at a time; walk for 10 minutes at a time; sit for six hours in an 8hour workday; stand for six hours in an eight-hour workday; walk for four hours in an eight-hour workday; continuously reach, handle, finger, feel, push, and pull; frequently climb ramps and stairs; occasionally stoop, kneel, crouch, and crawl; and never balance, climb ladders or scaffolds, or be exposed to unprotected heights or dangerous, moving machinery. Tr. at 332-37.

         On September 16, 2011, Plaintiff indicated to Meredith Purgason, APRN (“Ms. Purgason”), that the injections administered during the last visit had relieved his wrist pain. Tr. at 950. He denied side effects from his medications, but stated Tramadol was not effectively controlling his pain. Id. Ms. Purgason suggested adding a prescription for a Butrans patch, but Plaintiff instead agreed to continue taking the same medications. Id.

         On November 16, 2011, Plaintiff reported he was experiencing increased stress, irritability, and mood swings. Tr. at 880. He questioned whether these symptoms may be side effects of his pain medication. Id. Ms. Purgason indicated to Plaintiff that his increased irritability was likely the result of increased stress and depression. Id.

         On January 20, March 15, and May 10, 2012, Ms. Purgason indicated Plaintiff was compliant with his medications; denied adverse side effects; and stated his medications kept his pain at a tolerable level. Tr. at 877, 878, and 879.

         On May 15, 2012, Plaintiff indicated to Dr. Desai that he had difficulty driving long distances and was sleeping for half the day. Tr. at 890. He expressed sadness over his inability to participate in activities. Id.

         On June 28, 2012, Plaintiff complained of a flare up of low back pain that was radiating down his left leg and to his inner left thigh. Tr. at 876. He stated his medications provided some relief and indicated he was tolerating them without adverse effects. Id. Ms. Purgason prescribed a Medrol Dosepak and refilled Plaintiff's other medications. Id.

         On August 13, 2012, Plaintiff indicated to Dr. Desai that he was significantly limited by his pain and was unable to spend quality time with his children. Tr. at 891.

         On October 19, 2012, Plaintiff reported pain in his back and left leg and endorsed numbness and tingling in his arms and hands d. Tr. at 874. Dr. Loudermilk referred Plaintiff for a cervical MRI, discontinued Xolox, prescribed Mobic and Roxicodone, and provided information on spinal cord stimulation. Id. The MRI of Plaintiff's cervical spine showed generalized cervical spondylosis, multilevel disc bulging, and osteophyte formation with varying degrees of central canal stenosis and neural foraminal impingement. Tr. at 882-83.

         Dr. Desai indicated Plaintiff was continuing to do well on Pristiq, voiced no concerns or complaints, and was mentally stable on November 7, 2012. Tr. at 891.

         On November 16, 2012, Plaintiff indicated a desire to proceed with a trial of a spinal cord stimulator to help reduce the pain in his back and left leg. Tr. at 873. Dr. Loudermilk noted that Plaintiff's cervical MRI showed multilevel cervical spondylosis with disc bulging and spurs, but did not suggest a need for surgery. Id. He discontinued Mobic based on Plaintiff's report of adverse side effects. Id.

         On December 14, 2012, Plaintiff indicated to Dr. Loudermilk that he was experiencing pain in his bilateral thumbs. Tr. at 866. Dr. Loudermilk administered a Cortisone injection at the base of Plaintiff's right thumb and referred him to a hand surgeon. Id. Plaintiff expressed a desire to hold off on implantation of a spinal cord stimulator because he had met his insurance deductible, but Dr. Loudermilk could not guarantee him that the procedure would be performed by the end of the year. Id.

         Plaintiff presented to L. Edwin Rudisill, Jr., M.D. (“Dr. Rudisill”), with a complaint of severe left thumb pain. Tr. at 862-63. Dr. Rudisill diagnosed left trigger thumb and administered an injection. Id. When Plaintiff returned to Dr. Rudisill on March 19, 2013, he reported temporary relief as a result of the prior injection, but stated his thumb was catching again. Tr. at 863. Dr. Rudisill administered a second injection. Id.

         On January 11, 2013, Plaintiff reported severe pain in his neck, back, and lower extremities and stated he was out of medication. Tr. at 871. Ms. Purgason authorized refills. Id.

         Plaintiff reported increased depression and inability to sleep to Dr. Desai on February 6, 2013. Tr. at 889. He noted his mind was racing during the night. Id. Dr. Desai prescribed 100 milligrams of Pristiq and 100 milligrams of Trazodone. Id.

         On February 8, 2013, Plaintiff complained of a severe flare up of low back and left leg pain. Tr. at 870. Ms. Purgason prescribed a Medrol Dosepak and referred Plaintiff for an MRI of his lumbar spine. Id.

         The MRI of Plaintiff's lumbar spine showed a left-sided L4-5 disc protrusion with a small disc fragment that migrated inferior to the disc along the anterior aspect of the left L5 transverse root and may produce radiculopathy; a mild left-sided L5-S1 disc protrusion with a deep annular tear; a right-side predominant disc bulge at ¶ 3-4; and discogenic edema of the L4-5 and L5-S1 endplates. Tr. at 881.

         Plaintiff followed up with Ms. Purgason on March 1, 2013, to discuss the results of his MRI. Tr. at 869. She stated Plaintiff received some relief of his symptoms through use of Roxicodone, Ultram, and Klonopin and noted that he was tolerating the medications without adverse effects. Id. Ms. Purgason indicated she would consult with Dr. Loudermilk. Id. Dr. Loudermilk administered lumbar ESIs on March 15, March 28, and April 18, 2013. Tr. at 868 and 884-86.

         On April 9, 2013, Plaintiff presented to Michael Reing, M.D. (“Dr. Reing”), for a surgical consultation. Tr. at 892. Dr. Reing observed Plaintiff to have point tenderness and decreased sensation in his lateral left thigh, but to have normal motor function, feeling, and DTRs. Tr. at 893. He recommended surgery. Id. On April 22, 2013, Dr. Reing performed left hemilaminectomy and discectomy. Tr. at 897-99.

         Plaintiff presented to Dr. Thompson for a second consultative examination on July 17, 2013. Tr. at 910-13. Dr. Thompson indicated Plaintiff looked to be in pain and was quite sluggish. Tr. at 910. He described Plaintiff's mood as irritable and depressed and indicated his affect was sad and tearful. Id. He noted Plaintiff was able to follow a two-step instruction and had fair insight and judgment. Id. He stated Plaintiff had intact recent and remote memory, but poor attention and concentration. Id. Dr. Thompson indicated Plaintiff “seems to have made a very poor psychological adjustment to his pain and current difficulties.” Tr. at 911. Plaintiff reported problems with withdrawal, anhedonia, and daily crying spells. Id. Dr. Thompson indicated “[a]s he presents today, I believe he would not be able to perceive or avoid danger in a typical work place and he seems to have difficulty with emotional control.” Id. He concluded as follows:

This gentleman seems to have emotionally gone downhill and has sunk deeper into depression than the last time I saw him according to my previous notes and report on him. I do not believe he is capable of managing benefits currently due to the neurovegetative symptoms of major depression, poor concentration and attention, and certainly do not believe he could be trusted to work independently in a typical work environment without coming into contact with machinery or becoming at risk for another injury as he presents on this occasion.

Tr. at 912.

         At the ALJ's request, Plaintiff presented to John C. Whitley, III, Ph. D. (“Dr. Whitley”), for a psychological evaluation on July 22, 2014. Tr. at 974-80. Plaintiff reported struggling with memory and concentration throughout his life, but indicated his pain exacerbated his memory and concentration problems. Tr. at 975. He stated his back pain caused him to feel sad and depressed and to avoid others. Id. He indicated he cried easily, had limited energy, and had little motivation. Id. Dr. Whitley observed that Plaintiff “appeared to be in significant pain”; was very restless in his seat; and had to stand several times during the interview because of pain. Tr. at 977. He noted Plaintiff was sad and frustrated. Id. Plaintiff had grossly intact recent and remote memory; was able to recall four of four objects immediately and two of four objects after a 15-minute delay; was able to recite three digits forwards and backwards and spell “world” forwards and backwards; performed serial threes, fives, and sevens in a forward manner; interpreted proverbs; understood conversational speech; discussed a current event; and performed simple subtraction. Id. Dr. Whitley observed Plaintiff to have a mildly slow, but coherent and organized thought process. Id. He indicated Plaintiff's thoughts were sometimes interrupted by pain. Id. He indicated Plaintiff was cooperative and responsive; put forth effort during the interview; and did not attempt to embellish his symptoms. Id. He stated Plaintiff's IQ scores, which ranged from 72 to 81, and other testing, which showed him to be reading on a third grade level and performing math on a fifth grade level, were “felt to be a mild underestimation of his true functioning abilities, ” but “appeared to represent his current difficulties.” Tr. at 978-79. He diagnosed depressive disorder due to chronic back pain with depressive features, adjustment disorder with mixed anxiety and depressive mood, and borderline intellectual functioning. Tr. at 979. Dr. Whitley stated Plaintiff did not meet qualifications for mental retardation. Tr. at 980.

         C. The Administrative Proceedings

         1. The Administrative Hearing

         a. Plaintiff's Testimony

          i. June 16, 2011

         Plaintiff testified that he attended special education classes and was unable to read or write. Tr. at 36. He stated he worked in the construction industry as a carpenter's helper, a plumber's helper, and an electrician's helper; operated heavy equipment; and loaded and unloaded rolls of plastic in a factory setting. Tr. at 36-37.

         Plaintiff testified he stopped working on February 16, 2009, after injuring his back. Tr. at 38-39. He indicated he experienced severe back pain that radiated through his legs and caused throbbing, tingling, and stabbing sensations. Tr. at 39 and 45. He endorsed severe headaches and numbness and tingling in his arms. Tr. 39-40 and 43. Plaintiff testified he had difficulty maintaining his balance and had sustained falls. Tr. at 40. He stated he used a cane and a wheeled walker to balance and alternate from sitting to standing and vice versa. Tr. at 40 and 42. He indicated he was seeing a psychiatrist for emotional problems that were often manifested by anger, sadness, and crying. Tr. at 44.

         Plaintiff reported that he could not sit and stand comfortably for more than a short period of time. Tr. at 42. He testified he was very emotional because of his inability to participate in activities with his children. Tr. 44. He stated he used to play golf, go fishing and hunting, and play with his children. Id. He endorsed side effects from his medications that included dizziness, lightheadedness, and drowsiness. Tr. at 45-46.

         Plaintiff stated he was able to care for his personal needs without assistance. Tr. at 47. He indicated he occupied his time by walking around, watching television, and lying down during the day. Id. He testified he saw a chiropractor three times a week. Tr. at 49.

         ii. May 15, 2014

         Plaintiff testified he experienced sharp pain in his low back that radiated through his legs and caused numbness. Tr. at 612. He stated that, following his injury in February 2009, he filed a Workers' Compensation claim and was referred to doctors. Tr. at 601- 02. He indicated a Workers' Compensation doctor authorized him to return to work on light duty, but he was unable to complete the workday. Tr. at 603. He stated he attempted physical therapy, but it increased his pain. Tr. at 604. He indicated he underwent back surgery in April 2013. Tr. at 606.

         Plaintiff testified his pain typically ranged between a seven and an eight on a 10-point scale and was aggravated by turning the wrong way, exiting a car, sitting, and other activities. Tr. at 613. He stated his pain disrupted his sleep. Id. He testified his ability to walk varied from day to day. Tr. at 614. He stated he could sometimes lift 10 to 20 pounds, but other times had difficulty performing any lifting. Tr. at 615. He indicated he had difficulty bending to pick up items from the floor. Id.

         Plaintiff endorsed little change in his pain since undergoing the surgery in February 2013. Tr. at 618. He stated the pain that was radiating to his groin had disappeared, but indicated he continued to experience pain through his legs. Id.

         Plaintiff testified he received psychiatric treatment from Dr. Desai. Tr. at 617-18. He stated he felt helpless and was unable to care for his children. Id. He indicated he developed marital problems that resulted in divorce. Tr. at 618. He testified he had enjoyed hunting, fishing, golfing, and playing church-league softball, but was no longer able to engage in those activities. Tr. at 625-26, 632. He stated he had been living with his parents for a year-and-a-half. Tr. at 633. He indicated he spent most days watching television, talking to his parents, and walking around the yard. Tr. at 633-34. He stated he was able to care for most of his personal needs, but sometimes required help to put on his shoes and socks. Tr. at 634.

         Plaintiff testified he was enrolled in special education classes while in school. Tr. at 620. He stated he had difficulty reading, writing, performing mathematical operations, and learning material. Id. He denied the ability to read a newspaper or letter. Id.

         iii. September 9, 2014

          Plaintiff testified he was in basic or special classes when he was in school. Tr. 454-55. He stated he was expelled after getting into a fight. Tr. at 457-58.

         Plaintiff reported he injured his back while lifting a fire-rated door. Tr. at 466. He stated his back went out and he fell to the floor. Id. He indicated he asked Dr. Hibbitts to allow him to return to work during the summer of 2009, but left work permanently in September 2009, when he was unable to perform light duty work. Tr. at 467-68.

         Plaintiff testified he experienced pain in his back and legs. Tr. at 471. He indicated he initially experienced pain in his left leg, but had begun to notice pain in both legs in 2013. Id. He stated he underwent a discectomy in April 2013. Tr. at 472-73.

         Plaintiff testified that he had been using a cane since he was injured. Tr. at 474. He stated he often fell. Id. He ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.